Kmart's damages unchanged for girl's severed eyelid

·2-min read
Paul Miller/AAP PHOTOS

Kmart will have to pay around $60,000 to a young girl whose eyelid was severed in one of its stores after her legal bid to increase the payout was rejected.

The girl ran into a clothing rack at the retailer's Chatswood store in Sydney on January 8, 2020, lacerating her right eyelid when she was six years old.

She was required to undertake two operations over six months to re-attach the eyelid which was almost detached and hanging off by a thin strip of skin.

Kmart admitted liability, saying the injury was caused by the negligence of its employees.

At a District Court hearing, her mother said her daughter refused to sleep alone, was too scared to play contact sports, and exhibited a loss of confidence and increased anxiousness.

In November last year, Judge Robert Montgomery found there was a significant possibility the girl would need psychological counselling as an adolescent due to the scarring of her eyelid.

"In my opinion, quite apart from the pain and inconvenience, the plaintiff's demeanour and zest for life have been severely impacted by (Kmart's) negligence," the judge wrote.

He awarded the girl $46,000 for non-economic loss including psychological and emotional trauma and a further $5000 for loss of earning capacity.

The girl, through her mother, then launched an appeal seeking to increase these amounts in the NSW Supreme Court. 

She did not attempt to boost a further $9000 awarded in the District Court for out-of-pocket expenses and future medical costs like plastic surgery.

On Tuesday, three NSW Supreme Court judges unanimously rejected the appeal, finding Judge Montgomery did not err when determining the amounts he said were owed over the injury.

The appeals court found the $46,000 was "somewhat generous" for the trauma the girl had suffered.

There was no error regarding the additional $5000 which was calculated based on "intuition" given there was no evidence what such a young girl would do in her professional career.

Kmart's appeal bid to completely overturn any amount owed for loss of future earnings was also dismissed.