Scope and content critical in determining a defendant's liability

Simon Bibby was injured on 5 April 2018 in the course of his employment with Tyre and Auto Pty Ltd trading as Kmart Tyre & Auto Services (KTAS) when he was manually moving a wheeled waste oil container up a concrete ramp between the lower and upper levels of a service station complex in St Ives, NSW (Premises).

The system of moving waste oil containers up the ramp was adopted by KTAS because the drivers of waste oil trucks were refusing to drive down the ramp due to concerns about its load-bearing capacity.

KTAS occupied a mechanic’s workshop and work bays on the lower and upper levels of the Premises under a sub-licence from Eureka Operations Pty Ltd trading as Coles Express (Eureka), which operated a petrol station and shop from the Premises under a licence from Viva Energy Australia Pty Ltd (Viva).

Mr Bibby commenced proceedings against Eureka and Viva in the District Court of New South Wales in relation to the incident. The primary judge found that Viva was 90% liable for Mr Bibby’s injuries, Eureka had no liability, and the notional liability of KTAS (which had not been joined to the proceedings) was 10%.

Viva appealed to the Supreme Court of New South Wales. The NSW Supreme Court allowed Viva’s appeal and awarded judgment for Viva against Mr Bibby. 

Viva was contractually obliged to undertake structural repairs to the Premises. The NSW Supreme Court considered the scope of its duty in negligence extended to undertaking repairs to the ramp. To discharge that duty, it was necessary to engage an engineer to inspect the ramp, to devise a method of repair, and to engage contractors to undertake the work. Viva’s duty could not have extended beyond a duty to repair the ramp within a reasonable time (taking account of the seriousness of the problem).

The NSW Supreme Court considered the evidence did not justify a conclusion that Viva delayed unreasonably in repairing the ramp. On 22 January 2018 Viva was aware there may be a problem with the ramp. By 13 February 2018 Viva had an engineer on site inspecting the ramp.  The NSW Supreme Court found it was unrealistic to suppose the work could have been completed before Mr Bibby was injured on 5 April 2018; and Mr Bibby led no evidence to suggest otherwise.

In addition, the NSW Supreme Court found there was no evidence before the primary judge from which it could be concluded that if the ramp had been repaired before Mr Bibby’s injury, his injury would have been avoided. If the temporary support for the ramp proposed by the engineer had been installed before Mr Bibby’s accident, the heaviest vehicles that could use the ramp safely were those not exceeding three tonnes. Even if the ramp had been repaired before Mr Bibby’s accident, the heaviest vehicles that could use it safely were those not exceeding six tonnes. There was no evidence before the primary judge that the waste oil trucks that were used to collect the waste oil weighed less than six tonnes let alone less than three. Consequently, on the evidence, it could not be said that the failure to repair the ramp or to install temporary supports before Mr Bibby’s accident caused that accident.

The NSW Supreme Court considered the unsafe system of work was introduced by KTAS because waste oil truck drivers refused to use the ramp, not because of a breach of duty by Viva. Contrary to the basis on which the primary judge proceeded, there was no real connection between the defects in the ramp, let alone Viva’s breach of duty, and Mr Bibby’s injury.

The NSW Supreme Court considered the evidence did not establish that the only solution to the problem of disposing of waste oil on the lower level was the one that was eventually adopted, which involved a minor structural modification of the Premises. Even if it was, there was no basis for concluding that the obligation was on Viva to come up with or to implement the solution. KTAS had a right to make structural alterations with consent, which was not to be delayed or withheld unreasonably. It was not required to obtain consent where the alteration was reasonably necessary to comply with its obligations under the terms of the Site Licence which were incorporated into the Sub-Licence. It was for KTAS to implement a safe system of work for its employees given the inherent restrictions imposed by the Premises.

To the extent that Mr Bibby sought to argue that Viva was required, as an aspect of its duty of care, to approve the implementation of the new system of disposing of oil, the NSW Supreme Court found there was no evidence of Viva being asked to provide such approval prior to Mr Bibby’s accident. No causally significant breach could be established, even if there was otherwise a sound basis for the contention that approving the implementation of such a system was an aspect of Viva’s duty of care.

This decision serves as a reminder to properly consider the ‘scope and content’ of a defendant’s duty of care. Consideration needs to be given to not only whom the duty is owed and in what circumstances but also what the defendant had to do to meet that duty.

The concepts of ‘scope and content’ are important as they prevent limitless liability and ensure that a careless act does not expose a defendant to endless or disproportionate financial claims.

You can read the full decision here.