Background
Simon Bibby was injured on 5 April 2018 while employed as store manager by Kmart Tyre & Auto Services (KTAS) at a petrol station complex in St Ives, New South Wales. He was manually pushing a heavy wheeled waste oil container — weighing up to 120 kg when full — up a concrete ramp connecting the lower and upper levels of the complex. The ramp was part of premises licensed by Viva Energy Australia Pty Ltd (Viva) to Eureka Operations Pty Ltd trading as Coles Express (Eureka), which in turn sub-licensed the mechanic’s workshop area to KTAS. Under the Site Licence, Viva was contractually obliged to carry out structural repairs to the premises.
The unsafe manual-handling practice arose because waste oil truck drivers had, since around March 2017, been refusing to drive their vehicles down the ramp due to concerns about its load-bearing capacity. Viva did not become aware of this problem until 22 January 2018, when Eureka forwarded KTAS’s escalating complaints. Viva promptly engaged an engineer, who inspected the ramp on 13 February 2018 and delivered a report on 19 February 2018. The report recommended immediate temporary propping to permit vehicles up to three tonnes, followed by structural remedial works to restore the ramp’s design capacity of six tonnes. Steps were underway to obtain quotes for that work when Bibby was injured.
Bibby commenced proceedings in the District Court of New South Wales against both Viva and Eureka. The primary judge (Gibson DCJ) found Viva 90% liable and Eureka not liable, apportioning the remaining 10% of notional responsibility to KTAS (which had not been joined). Viva appealed, challenging both its liability and, in the alternative, the apportionment of contributory fault and a component of the damages award.
The Court’s Holding
The Court of Appeal (Ball JA, with Leeming and Free JJA agreeing) allowed the appeal and entered judgment for Viva. Ball JA accepted that Viva, as landlord contractually bound to undertake structural repairs, owed Bibby a duty of care in negligence to repair the ramp within a reasonable time, having regard to the seriousness of the problem. The scope of that duty was informed by the circumstances of the case and governed by s 5B of the Civil Liability Act 2002 (NSW), including the terms of the licence and the allocation of maintenance obligations between the parties.
The Court held, however, that Viva had not breached that duty. From the time it first received notice of the problem on 22 January 2018, Viva moved promptly: it arranged an engineering inspection within three weeks, received the report shortly after, and was in the process of obtaining quotes for the recommended two-stage repair programme. Given that Stage 2 — full structural remediation to restore six-tonne capacity — necessarily required engaging a structural remedial works engineer to prepare specifications, soliciting quotes, and contracting the work, it was unrealistic to suppose those repairs could have been completed in the roughly six weeks before Bibby’s accident on 5 April 2018. Bibby led no evidence to suggest otherwise.
Critically, the Court found that causation was not established in any event. There was no evidence that the waste oil trucks weighed less than six tonnes — indeed, the available evidence suggested they exceeded that figure — meaning truck drivers would have refused to use the ramp even had full repairs been completed. The unsafe system of work adopted by KTAS was not caused by any breach of duty on Viva’s part; it was caused by the drivers’ pre-existing refusal to use the ramp. There was accordingly no real connection between any deficiency in Viva’s conduct and Bibby’s injury.
Key Takeaways
- A landlord who is contractually obliged to undertake structural repairs owes a concurrent duty in negligence to carry out those repairs within a reasonable time once on notice of a risk, but the duty extends no further than what is reasonably achievable having regard to the steps necessarily involved in the repair process.
- Causation requires proof that the defendant’s breach — not merely a defect on the premises — was a necessary condition of the plaintiff’s injury; where the evidence does not establish that a timely repair would have changed the third party conduct that gave rise to the unsafe system of work, the causal link is broken.
- An employer’s adoption of an unsafe system of work in response to a structural defect does not automatically render the landlord liable; it was for KTAS, as occupier of the workshop, to implement a safe system for its employees given the inherent limitations of the premises, and KTAS had contractual rights to seek consent for structural modifications that it did not exercise prior to the accident.
- Where a plaintiff fails to adduce evidence that a proposed interim or permanent repair would have persuaded the relevant third parties (here, truck drivers) to resume use of the defective structure, a finding of causation cannot stand.
Why It Matters
This decision provides important clarification on the scope of a commercial landlord’s duty of care in circumstances where a structural defect on the premises contributes to an unsafe work practice adopted by a sub-tenant’s employer. The Court’s analysis confirms that the duty is circumscribed by what reasonable diligence actually permits within the available timeframe, and that evidence of causation must directly connect the landlord’s alleged breach to the plaintiff’s injury — not merely to the existence of the defect or the resulting inconvenience.
The judgment will be of practical significance to property owners and operators in multi-party commercial leasing arrangements, particularly those involving licensed or sub-licensed premises where maintenance responsibilities are divided. It underscores that liability will not be imposed on a landlord simply because a structural problem existed and an injury occurred; plaintiffs must demonstrate with evidence that a timely repair would actually have prevented the specific injury mechanism — a burden that may be difficult to discharge where the conduct of independent third parties forms part of the causal chain.