Case: Viva Energy Australia Pty Ltd v Bibby [2026] NSWCA 118

Link to decision

Key takeaway
In a recent decision, the New South Wales Court of Appeal has overturned a District Court judgment holding a commercial landlord liable for failing to carry out ‘immediate repairs’ to a ramp being used in an unsafe manner by a mechanics workshop.

The Court emphasised a landlord is not subject to a general duty to inspect and identify defects that give rise to unsafe systems of work during a tenancy but is instead required to act reasonably in accordance with relevant lease terms once notified of such defects.

The landlord in this instance was absolved of liability where they took reasonable steps to rectify structural defects in the premises once placed on notice of those defects.

The facts
The Plaintiff was a store manager at a Kmart Tyre and Auto mechanic workshop, which was occupied pursuant to licencing arrangements that effectively placed the First Defendant, Viva Energy, in the position of landlord.

In January 2018, three months prior to the injury, the Plaintiff and other employees raised safety concerns about a manual loading system requiring them to wheel waste containers up a ramp that was unable to support the weight of vehicles collecting that waste.

The landlord was notified of the complaints and accepted it was responsible to increase the ramp’s structural weight-bearing capacity, as the landlord was responsible under the lease agreement for ‘structural repairs and maintenance’.

In February 2018, the landlord engaged an engineer who completed a site inspection and issued a report proposing a regime of temporary propping and further structural modification.

On 5 April 2018, before the engineer’s recommendations were actioned, the Plaintiff injured himself while transporting a wheeled waste oil container up the ramp which gave rise to these proceedings.

The district court
At first instance, the District Court held the landlord breached its duty of care to the Plaintiff and was liable in negligence where it knew the unsuitable ramp was requiring mechanics to manually wheel oil barrels up in an unsafe manner.

The Court further found the landlord was required to take ‘urgent’ steps to repair the ramp once they were notified about the significant safety issue. The landlord’s failure to carry out repairs within the three-month period between notification and the injury was significant and it held the landlord 90% liable for the Plaintiff’s injury.

The court of appeal
The landlord appealed the decision to the Court of Appeal, which overturned the District Court decision.

The Court acknowledged the landlord was contractually obliged to undertake structural repairs after being placed on notice about the issue, however that obligation did not require ‘urgent’ action be taken and was rather a question of what was reasonable in the circumstances.

Instead, the Court found:

• To discharge its duty, the landlord was required to repair the ramp within a reasonable time, taking into account the seriousness of the problem and acknowledging the time such rectifications processes take.
• There was no evidence that the failure to repair the ramp or install temporary supports is what caused the Plaintiff to suffer an injury.
• The Plaintiff’s employer held the real responsibility to implement a safe system of work for its employees within the premises it chose to conduct its business.

Ultimately, the Court of Appeal was not satisfied the landlord had acted unreasonably and found in their favour, where they had taken reasonably prompt steps to respond to the defect once being placed on notice.

Implications
This decision is of importance to commercial landlords and their insurers, as it emphasises a landlord does not necessarily bear responsibility for a tenant’s systems of work where those systems could have developed in response to, or be related to, a structural defect at the premises.

The Court will instead draw from the relevant terms of a lease and the facts as a whole when examining a case in negligence, without placing an undue burden for safe systems of work upon landlords who may not be physically present.

Coauthored by Lillian Scarborough, Associate