Bibby v Viva Energy Australia Pty Ltd & Anor [2025] NSWDC 377

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Key takeaways

An employer owes a duty of care to protect its employees when they have become aware that third-party work premises have become unsafe.

Even if the third party responsible for the safety of the work premises has failed to act on repeated requests by an employer to rectify safety issues, the employer is still responsible for reviewing and modifying the system of work to discharge its non-delegable duty of care owed to its workers.

Brief facts

The worker was employed by Kmart Tyre and Auto (the employer), who sub-licensed premises for its operations from Eureka Operations Pty Ltd trading as Coles Express (Eureka).

Eureka occupied the premises under licence from Viva Energy, the third party entity responsible for the repairs and maintenance of the premises under licence agreements (we note that Viva was the original owner and landlord but sold the premises retaining rights as head lessee under revised licence agreements).

On 5 April 2018, the worker sustained an injury to his lower back whilst he was dragging a heavy waste oil drum up a ramp where the oil was to be collected by a truck. The ramp was originally used by truck drivers to drive down to collect the oil drums, but due to safety concerns with the structural integrity of the ramp (particularly the weight limit), trucks were directed by the landlord to stop using it.

Prior to the injury, the employer and the worker raised safety concerns about the ramp with Viva Energy and Eureka. Despite these concerns being raised before the worker’s injury on 5 April 2018, the issues were not rectified prior to the injury date.

The contractual agreements between the employer, Viva Energy, and Eureka required the employer to notify Eureka of any defects and hazards. Eureka was then responsible for communicating those issues to Viva Energy, which it did.

The worker commenced District Court proceedings against Viva Energy and Eureka, alleging that both parties owed a duty of care to ensure that the business premises where he worked were safe and free from a foreseeable risk of harm. The parties did not join the employer in the proceedings.

Viva Energy and Eureka relied upon section 151Z of the Workers Compensation Act 1987 (s151Z) to allege that an apportionment of 75% should be awarded against the employer (for a reduction in the worker’s damages) as its liability for the worker’s injury was ‘substantial’.

Judgment

Judge Gibson found Viva Energy to be wholly liable to the worker for its failure to act on the 11 requests for assistance they received from the worker and the employer, requiring urgent action to be taken. Further, Viva Energy in fact created the problem which led to the worker’s accident, as Viva Energy had limited the ramp access to vehicles under three tonnes.

Her Honour also held that although Eureka had breached its duty of care by failing to pass on information within its contractual obligations, such breach was not causative of the worker’s injury. This resulted in no apportionment of liability being made against Eureka.

In respect of the operation of s151Z and the worker’s damages, Her Honour was required to assess the employer’s liability contribution and determined that an apportionment of 10% for the employer was appropriate. This resulted in an apportionment of 90% against Viva Energy.

Employer’s liability

In assessing the employer’s liability, Judge Gibson discussed the obligations that an employer has to their employees [at paragraph 126]:

An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risk of injury. If there is a real risk of injury to an employee carrying a performance of his task in the workplace, the employer must take reasonable care to avoid that risk by devising a method of operation for the performance of the task that eliminates the risk. In doing so, the employer must take into account the possibility of carelessness or inadvertence, particularly where the system of work includes factors likely to give rise to injury, such as repetitive work, heavy lifting and the need for appropriate numbers of workers to perform a task. Not only must the employer provide a safe system of work; there is an obligation to both maintain and enforce any such system. That includes the provision of suitable equipment: Czatyrko v Edith Cowan University (2005) 79 ALJR 839 at [5].

Judge Gibson acknowledged that ‘Kmart did everything it could and should do in order to have the repair work identified and carried out’. This consisted of Kmart adhering to their contractual obligations and taking reasonable steps to inform Viva Energy and Eureka about the dangers posed by the condition of the ramp.

Notwithstanding the employer’s contractual obligations, her Honour was of the view that the employer should have taken further steps to ensure its workers were protected when they became aware that a part of the work premises had become unsafe to use. However, the Court rejected Eureka’s submission that the employer should have closed the premises and not operated until the issue was rectified as this is not reasonable for any business. It was considered to have been appropriate to instead have an expert attend the premises to observe what was occurring and to make recommendations, as this action was taken by the employer after the worker’s accident.

Implications

This decision reaffirms the general principle that an employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risk of injury.

Even where reasonable action has been taken to report safety concerns to the responsible third party, employers must also review and, where necessary, modify the system of work to reflect the changed working environment, particularly while awaiting remedial action from those responsible for the premises.