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A Kmart Tyre & Auto Services outlet occupied a two level workshop in a service-station complex owned by Viva Energy.
The workshop in St-Ives in Sydney stored waste oil in tanks on both levels. Historically, the waste oil in the lower level tanks was collected by trucks that drove down a concrete ramp to load it for disposal.
At some point before January 2018, truck drivers began refusing to use the ramp because of concerns about its load-bearing capacity. KTAS staff responded by pushing wheeled oil containers, known as “oil boys”, up the sloping ramp to the upper level for the trucks to load the waste oil. The containers were about 35 kg and could weigh up to 120 kg when full.
Simon Bibby had worked at the site since October 2017, as its store manager.
Emails in January and March 2018 recorded escalating concerns about that practice. In January, Eureka Operations, the petrol-station operator that had sub-licensed the workshop to KTAS, brought the ramp issue to Viva’s attention. Viva arranged for an engineer to inspect the ramp in mid-February. The engineer’s report issued a few days later identified cracking, misalignment and honeycombing. It recommended immediate temporary propping and a three-tonne traffic limit, followed by work intended to restore the ramp’s six-tonne design capacity.
In early April 2018, Bibby pushed or pulled a mobile oil drainer up the ramp. He later reported groin pain and attributed the activity as a possible cause of his injury. The temporary propping and signage works began eight days after that.
Following Bibby’s injury, KTAS sought approval to install a pumping system that would move oil from the lower level to the upper workshop. Viva approved the works and paid for them.
The worker’s lawsuit that followed targeted Viva and Eureka but not his employer, KTAS.
The District Court reasoned the ramp problem and the manual handling problem were closely connected: if Viva had promptly repaired or supported the ramp, or devised an interim solution, Bibby would not have been injured. It found Viva 90% liable, assigned 10% notional responsibility to KTAS, and exonerated Eureka.
Viva appealed. The appeal judges – in accepting that a landlord owes entrants and tenants reasonable care in relation to foreseeable risks – examined Viva’s site licence which required it to undertake structural repairs. That meant its duty extended to repairing the ramp.
Justice Michael Ball in delivering the lead judgment of the court observed that a reasonable repair process could include engaging an engineer, deciding a repair method, seeking specifications and engaging contractors.
He held that the trial judge had erred in deciding Viva had unreasonably delayed the repairs. Viva learned of a possible issue on late January, obtained the engineering report in February and was in the course of implementing a solution only days after when Bibby was injured. That program for repairs was entirely reasonable.
Further, there was no evidence to establish that had the ramp been repaired before the date of injury to Bibby, his injury would have been avoided. The temporary supports – which would have allowed vehicles of up to three tonnes on the ramp – would have been unlikely to have removed the manual handling requirement because the available evidence showed the waste-oil trucks were heavier than three tonnes. Even the full repair may not have alleviated the problem because evidence suggested they also exceeded six tonnes in weight.
The court concluded the risk of injury was created by KTAS’s manual system for moving waste oil. The unsafe method had been introduced because truck drivers would not use the ramp, not because Viva had breached a duty after being told of the defect.
Nor was there evidence that Viva had been asked before the injury to approve the eventual pumping system. Its later decision to fund the work did not retrospectively make it responsible for designing or implementing that solution.
The appeal was allowed. Judgment was entered for Viva against Bibby, and the costs orders were recast so Bibby bore Viva’s costs and Eureka’s costs in the stated periods, as well as Viva’s appeal costs.
Viva Energy Australia Pty Ltd v Bibby [2026] NSWCA 118, Leeming JA Ball JA Free JA, 23 June 2026
Categories: Adequate System Of Work