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[2025] NSWDC 377
District Court of NSW
2025-09-24
Gibson DCJ
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Bibby v Viva Energy Australia Pty Ltd & Anor [2025] NSWDC 377
Hearing dates: 31 March – 2 April, 9 April, 28 July (Notice of Motion hearing), 20 – 21 August 2025
Date of orders: 24 September 2025
Decision date: 24 September 2025
Jurisdiction: Civil
Before: Gibson DCJ
Decision: Orders:
(1) Judgment for the plaintiff against the first defendant.
(2) Judgment for the second defendant against the plaintiff.
(3) Liberty to the parties to bring in Short Minutes of Order reflecting the mathematically agreed damages to be awarded to the plaintiff as against the first defendant and the judgment in favour of the second defendant, such Short Minutes to be provided by 29 September 2025.
(4) Costs reserved with liberty to apply, such liberty to be exercised by 1 October 2025, failing which the first defendant is to pay the costs of the plaintiff and of the second defendant.
(5) Exhibits retained until further order.
Catchwords: PERSONAL INJURY – plaintiff injured while rolling a large oil container down a ramp, an interim system set up pending investigation and repair – liability of landlord and owner – applicability of s 151Z of the Workers Compensation Act 1987 (NSW) – damages
PRACTICE AND PROCEDURE – adjournment of hearing due to ill health of medical expert – late application by first defendant to amend defence and bring a cross-claim against the second defendant – inability to hear application before the trial resumption date – application for leave to amend and file cross-claim refused
Legislation Cited: Civil Liability Act 2002 (NSW) s 5B
Workers Compensation Act 1987 (NSW) s 151Z
Cases Cited: Al Muderis v Nine Network Australia Pty Limited (Trial Judgment) [2025] FCA 909
Aldred v Stelcad Pty Ltd [2015] NSWCA 201
Allen v Tobias [1958] HCA 13; (1958) 98 CLR 367
Amaca Pty Ltd v State of New South Wales (2003) 77 ALJR 1509
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Bullock v London General Omnibus Co [1907] 1 KB 264)
Commercial Union Assurance Company of Australia Ltd v Pty Ltd (1991) 22 NSWLR 389
Czatyrko v Edith Cowan University (2005) 79 ALJR 839
Greiss v Seven Network (Operations) Limited (No 2) [2024] FCA 98
Jones v Bartlett (2000) 205 CLR 166
Jones v Dunkel [1959] HCA 9; (1959) 101 CLR 298
Lapcevic v Collier [2002] NSWCA 300
Sanderson v Blyth Theatre Co [1903] 2 KB 533
Synergy Scaffolding Services Pty Ltd v Alelaimat (No 2) [2024] NSWCA 11
Category: Principal judgment
Parties: Plaintiff:
Mr Simon Bibby
Defendants:
First Defendant:
Viva Energy Australia Pty Ltd
Second Defendant:
Eureka Operations Pty Ltd trading as Coles Express
Representation: Counsel:
Plaintiff:
Mr D Delmonte
Defendants:
First Defendant:
Mr D Baran (up until April 2025); thereafter Mr S J Walsh
Second Defendant:
Mr N Polin SC
Solicitors:
Plaintiff:
Turner Freeman Lawyers
Defendants:
First Defendant:
Minter Ellison
Second Defendant:
McCulloch & Buggy Lawyers
File Number(s): 2021/00106307
Publication restriction: Nil
The arrangements between the first and second defendant for the leasing of the premises are complex, but effectively the second defendant (hereafter “Coles”) was the occupier under a site license dated 27 November 2003 which regulated, among other issues, occupation access and egress and required consent for any alterations, while imposing operational obligations consistent with day-to-day control of the licensed area.
In or about August 2016, the first defendant (hereafter “Viva”) arranged to sell the premises but with a leaseback of the premises to Viva, including the existing license agreements which were redrafted accordingly. Viva then was the head lessee under the lease dated 8 August 2016. Clause 2.2 of that lease vested in Viva the rights and obligations of the existing landlord in relation to the site license. Part 7 of that document addressed issues of repair and maintenance with a “Major Capital Works” threshold, above which different provisions would come into effect.
The second defendant, in written submissions, summarises the relationship between the parties as at the date of accident as follows:
(a) the second defendant was the owner of the property; (b) The property was leased to Viva and the existing rights and obligations were as if it continued to be the owner of the premises; (c) Viva retained obligations in relation to the repair of premises under clause 7; (d) Viva retained rights in relation to capital repairs and works (clause 8.9); (e) Viva had granted a licence over the premises to the second defendant; (f) The second defendant was not entitled to materially alter, remove or add to any fixed structure located on the premises without the approval of Viva (clause 3.11(a)(i)); (g) The second defendant was not entitled to direct any fixed structure of a material nature on or within the premises without the approval of Viva (clause 3.11(a)(ii)); (h) The second defendant was not entitled to construct any structural works on or within the premises without the approval of Viva (clause 3.11(a)(iii); (i) The second defendant had no obligation to repair, maintain or replace any of the fuel equipment on or within the premises (Clause 5.2(d)); (j) The second defendant had granted a sublicense over part of the premises to the plaintiff’s employer, Kmart; (k) Kmart was the occupier of the premises where the plaintiff was working; (l) Mr Polin SC added, in his oral submissions, that both the witnesses called by Viva accepted that at all times it was Viva who was responsible for all structural repairs and maintenance at the premises.
The relevant contractual documents are set out in the head lease at clause 2.2, and Part 7 (Courtbook (“CB”) pp 337 – 346). The relevance of these contractual arrangements is that structural repairs had to be carried out by the first defendant, and not the second defendant, whose responsibilities were effectively for non-structural issues. As is clear from these lease documents, repairs to the ramp and the introduction of any interim fix or alternative solution to using the ramp would involve structural changes to the buildings on the site.
The plaintiff’s claim is that as early as March 2017, an issue was identified with the concrete ramp leading to the Kmart premises and all of the evidence points to this being a structural issue. It is common ground that Kmart could no longer use the ramp and as a result its employees had to manually move the oil up the ramp and was calling for an urgent solution including an interim fix. This was not a difficult issue; in May 2018, a quick and cheap solution proposed by Kmart, in view of the continuing delays, was reached, whereby an oil pumping system was installed to pump the oil from the lower floor up to the higher floor.
It is not in dispute that the solution proposed by Kmart after the plaintiff’s accident required structural alteration and the approval of the first defendant. The plaintiff and second defendant agree that at all times, any solution required either repair of the defective ramp, which was agreed to be a structural issue, and/or to install an oil pumping system, which the first defendant initially claimed was a maintenance issue which Kmart should have attended to, although the first defendant’s witnesses, Mr Krupakaran and Ms Shearer, conceded that this was also a structural issue (Tcpt 292, 315 – 316) and agreed they had never told Kmart this was Kmart’s job (Tcpt 349).
In other words, neither the plaintiff’s employer Kmart nor the second defendant had any right to undertake either of these repairs, let alone an obligation to do so. This much was clear from the site license between the defendants dated 27 November 2003 and the second defendant’s sublicense agreement with Kmart dated 21 January 2015.
The second defendant submits that it is absolved from liability by its contractual arrangements with the first defendant, to which it has adhered and that it has been brought into this litigation by reason of the manner in which the first defendant has pleaded and conducted its case.
The circumstances in which the plaintiff was injured need to be analysed in terms of the use of the ingress and egress ramps which had been on the property for approximately 60 years, during which time they had been used by many large and heavy vehicles without incident.
For many years prior to the plaintiff commencing work at Kmart, waste oil produced in the course of Kmart’s activities was transferred by trucks descending down at the ramp to vacuum oil from the lower tank into the building. In about March 2017, problems about the use of the ramp began. On 30 August 2017, after drivers began to express concerns about the safety of the ramp, an enquiry was made of the second defendant about the weight limit the ramp could take (CB (Vol 1A), p. 26).
At about this time or shortly thereafter, truck drivers became increasingly reluctant to use the ramp, which meant alternative methods for transferring the oil had to be found by Kmart. The concerns of those drivers is understandable; the prospect of the concrete ramp giving way or otherwise impeding the path of a large heavy truck, whether it was carrying oil or not, was self-evidently a foreseeable risk.
It was in these circumstances that the plaintiff commenced work for the defendant on 1 October 2017. When the plaintiff commenced work at Kmart, staff had arrived at an interim solution, namely to move heavy liquid filled mobile “oil boi” units on wheels up the steep concrete ramp. These “oil boi” units weighed approximately 35 kg empty, had a capacity of 80 to 100 L and when full could weigh 110 to 120 kg, according to the plaintiff (Tcpt 69).
Kmart and the plaintiff pressed both defendants for a solution. Emails were exchanged on 7 November 2017 and also on 4 and 5 January 2018. Nothing was done.
By 10 January 2018 contractors were still refusing to traverse the ramp at all, and staff were routinely rolling all containers up and down, as nothing had been done since the question of weight pressure on the ramp had first been raised in March 2017 (CB 6). It was in these circumstances that Kmart (Mr Phasavath) emailed both defendants on 10 January 2018, providing a copy to the plaintiff as well, an email which was followed up on 16 January 2018.
The plaintiff played a significant role in the sending of these emails. He identified an Occupational Health & Safety risk from the dragging of these heavy units up the ramp and referred, in his email of 16 January 2018, to this issue as being ongoing since March 2017, an assertion which Viva does not deny. His email of 30 January 2018 set out the problem in stark terms, pointing out that not only was the task in question a heavy one but that the ramp was very slippery when it was wet (CB 23).
This was a very angry email, and it appears to have stirred the first defendant into action. Mr Krupakaran advised that an engineer or surveyor would attend to investigate the structural integrity of the ramp, a response he sent that same day (CB 29). There was a further exchange of emails on 31 January and on 1 and 2 February, which is described in more detail below. It is not in dispute that all of the parties sending and receiving these emails were seeking instructions from, and acting on instructions from, the corporate entities for which they worked.
The issues identified by the plaintiff are duty, breach of duty, causation, defences and responsibility of each defendant given the tenancy/licence matrix (written submissions, paragraph 10).
The issues identified in relation to liability are as follows:
“1. Whether a duty of care was owed by the first and/or second defendant to the plaintiff.
2. If a duty of care was owed by the first and/or second defendant, the content and the scope of that duty.
3. Whether the plaintiff satisfies the individual elements of s 5B(1) under the Civil Liability Act 2002 (NSW) (CLA), namely:
3.1. whether the risk was foreseeable, that is, whether it was a risk of which one or both defendants knew or ought to have known;
3.2. whether the risk was not insignificant; and
3.3. in the circumstances, whether a reasonable person in each defendant’s position would have taken precautions against the risk.
4. Questions of what precautions were available and whether the first and/or second defendant ought to have taken those, or approved those to be taken, arise.
5. In determining whether the first and/or second defendant should have taken precautions, section 5B(2) of CLA applies, specifically inquiring whether:
5.1. the probability that the harm would occur if care were not taken;
5.2. the likely seriousness of the harm;
5.3. the burden on the first and/ or second defendant to take precautions to avoid the risk of harm;
5.4. the social utility of the activity that created the risk of harm.”
Issues conceded at the end of the hearing include the limitation argument (previously the subject of items 1 to 7 in the statement of issues provided by the plaintiff) and contributory negligence (previously items (i) to (K) in the statement of issues provided by the plaintiff).
The question of an employer’s contribution under s 151Z W**orkers C**ompensation A**ct 1987 (NSW) was also raised. I note the plaintiff was assessed with a 13% whole person impairment and is therefore not entitled to bring a claim for modified work injury damages against his employer under s 151H. Whether this section applies, even the operation of s 151Z(2), is a matter which must take into account that the plaintiff does not say that the employer, Kmart, is a joint tortfeasor. The plaintiff alternatively submits the proportion of liability is in issue.
I was not addressed orally about quantum, which is only briefly touched upon in the submissions from the defendants.
The first defendant raised a number of technical issues in relation to what duty of care was owed to the plaintiff by each of the defendants, asserting that this duty needed to be identified with precision in the pleadings.
This hearing had to be adjourned part heard on 2 April 2025 by reason of problems arising from the ill-health of a medical practitioner then required for cross examination, being that he was too ill to give evidence. This created many difficulties for the court because of other court time commitments. The hearing was set down to continue on 20 August 2025.
On 23 July 2025 the first defendant filed a notice of motion seeking the following orders:
“1 An order that the first defendant be granted leave to file and serve an Amended Defence in the form attached to this notice of motion pursuant to section 64(1) and (2) of the Civil Procedure Act 2002 (NSW) (CPA);
2 An order that the first defendant be granted leave to file a Statement of Cross-Claim in the form attached to this notice of motion pursuant to rule 9.1(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and/ or section 22 of the CPA;
3 As order under rules 1.12 and 9.1(1) of the UCPR extending the time for filing and service of the Statement of Cross-Claim to such date as the Court determines;
4 Such further order as the court sees fit;
5 Costs of and incidental to this motion be costs in the cause of the First Cross-Claim”.
Most of the evidence is documentary, in the form of emails exchanged between the parties. In those circumstances, it is helpful to set out the duty of care and the asserted breaches before considering the evidence.
The plaintiff’s case is that each of the first and second defendants owed a duty of care to the plaintiff to ensure that the business premises in which she works were safe and free from a foreseeable risk of harm (paragraph 2 of the amended statement of claim). This duty extended to ensuring that there was a safe ingress and egress to the employer’s business premises, and in particular, for the use of these means of ingress and egress for the purpose of carrying out their duties such as dealing with waste oil being pumped from those premises (amended statement of claim paragraph 3).
More specifically, in relation to the first defendant, it was the landlord level controller, owing and coextensive duty in tort as it was the entity standing in the landlord’s place under clause 2.2 and Part 7 of the head lease. This meant it had practical control over authorisations, expenditures and contractors and in particular the performance of any structural repairs. While there was a “Major Capital Works” threshold (CB 397 – 398), the amount required for the proposed remediation fell well below it.
As to the second defendant, as the occupier of the premises, it owed a duty to take reasonable care to avoid foreseeable risks to all lawful entrants performing routine tasks such as waste or removal which were integral to site operations. Its licence conferred day-to-day control over access and egress with the lower workshop. The site license, at clause 2.1, 3.11 and 5.1 required it to arrange consents for works and to manage operational risk.
The first defendant contends that it did not owe the plaintiff any duty of care, either in terms of carrying out any work or in relation to the devising of an alternative means of disposing of waste. The first defendant contends that the plaintiff cannot establish any duty because it is not pleaded with sufficient precision. The first defendant submits that the plaintiff has conflated the duties of a lessor/licensor to take reasonable care with notions of strict liability, a conflation that was rejected by the High Court in Jones v Bartlett (2000) 205 CLR 166 at [57] and [193], as well as with the obligation of Kmart as the employer to provide safe access to places of work.
The second defendant submits that Kmart was both the occupier of the premises and the plaintiff’s employer and that the first defendant was essentially the owner of the premises. Any duty owed by the second defendant cannot arise by reason of its ownership or occupation of the premises, and could only arise under its obligations in the license agreement with the first defendant (CB 444) and/or its sublicense agreement with Kmart dated 21 January 2015 (CB 485).
“8. It was a foreseeable risk of harm, in the circumstances of this matter, that the plaintiff would suffer serious injury lifting, carrying, rolling or otherwise moving heavy oil bins up and down the ramp in circumstances in which the heavy vehicles collecting or emptying those bins could not access the employer's business premises because of the unsafe state of the ramp and in circumstances in which earlier requests to secure the ramp or to permit an alteration of the premises to pump the waste oil from the business premises were not responded to or approved (the risk of harm).
9 The risk of harm was not insignificant.
10. A reasonable person in the either or both defendants' position would have taken the following precautions against the risk of harm (the precautions):
10.1. immediately arranged for the ramp to be secured and supported such that vehicles weighing more than 3 tonne could traverse the ramp;
10.2. arranged and/ or approved for an alternate means by which the employer’s business premises could be accessed and the waste oil removed;
10.3. clearly communicated realistic timeframes within which the ramp could be repaired and secured to the plaintiff's employer so that alternative measures could be taken for the oil bins to be safely conveyed across the ramp;
10.4. released the plaintiff's employer from its lease obligations in order that the employer could relocate to suitable premises that could be safely and appropriately accessed;
10.5. provided the plaintiff's employer with a mechanical or other device with which to convey the heavy oil bins safely across the unsafe ramp;
10.6. approved the implementation of an alternate solution where oil could be pumped up from the employer’s business premises.”
According to the plaintiff’s emails and evidence, there had been a history of knowledge of ramp weight problems since March 2017, when Mr Mike Phasavath, the Facilities of Co-Ordinator of Kmart began asking about the weight the ramps could support.
The relevant correspondence during this period has been sought by the plaintiff but has not been produced, although the first defendant’s witnesses acknowledged in cross-examination that there were other emails and documents which had been transferred to another file which could touch upon these matters. I am asked to draw inferences from the first defendant’s failure to call evidence from its employee, Ms Belinda Be, who was in fact an employee of the second defendant at the time the plaintiff’s accident occurred, and whose name appears in many of the emails.
The reference by the plaintiff to complaints going back to March 2017 is not evidenced by the correspondence produced, but it is clear from that correspondence which is before the court that there had been some kind of discussion going on over a period of time, judging by the contents of these emails. Foreseeability is demonstrated by the contemporaneous correspondence and the escalation of demands seeking interim assistance are particularly noteworthy.
On 30 August 2017, Mr Phasavath sent an email to Ms Belinda Be and Ms Wynn Yap in relation to a request of the load rating on the ramp, with a same day reply from Ms Be for a photograph which was responded to:
From: Belinda Be
Sent: Wednesday 30 August 2017 05:33:09 PM
To: Mike Phasavath;Wynn Yap
Subject: RE: St Ives CE #1597SB - Load rating on ramp
Hi Mike,
Do you have a photo of the ramp in question?
Thanks,
Belinda
From: Mike Phasavath [mailto:[redacted]]
Sent: Wednesday, 30 August 2017 2:46 PM
To: Belinda Be; Wynn Yap
Subject: St Ives CE #1597SB - Load rating on ramp
Hi Team,
Requesting a load rating on the ramp at the St Ives CE premises.
One of our service providers (waste oil) requesting a load rating on the ramp to ensure vehicles used are
not exceeding weight limit.
Can you please assist or advise who may have this information.
Your assistance in this matter is greatly appreciated.
Kind Regards,
Mike Phasavath Facilities Co-Ordinator” (Exhibit 1, p. 26)
“From: [redacted]
Sent: Monday, 6 November 2017 3:28 PM
To: [redacted]
Cc: [redacted]
Subject: Amended - Retail comms for A433, CEXP ST IVES, 1597, NSW from 12-02-2018 to 09- 03-2018, RAM: FRANK HONAN , REGION 2
[Submitted by Tino.Santos [redacted]]
All, Please refer below for the works to be conducted at site.
Retail Site Work Summary Communication
WORK SUMMARY
Communication ID:
5315
Communication Status:
Open
Coles Store Name:
COLES EXPRESS ST IVES
Project Type:
VR2 Rollout
Project Driver:
Planned
Project Start Date:
12/02/2018
Project End Date:
9/03/2018
Scope Details:
Installation of VR2 system, pump replacement and associated works. Majority of the forecourt will be closed/barricaded.
Shop(s) will remain operational.
Site Impact Work Type:
Works on Forecourt
Site Estimated Impact:
100%
*Additional Comments:*Amended to update contractor details
Email CC to:paul.justin[redacted]
MOTOR SPIRIT/DIESEL DELIVERY
MSD Delivery Prior to start of works:
Fill Tank for start date (Specify Level)
MSD Delivery Instructions:
at least 80% SFL on all MS Tanks
MSD Delivery Options:
No Deliveries MSD Delivery Maximum Allowed Truck Size:
LPG DELIVERY
LPG Delivery Prior to start of works:
No Work Required
LPG Delivery Instructions:
LPG Delivery Options:
No deliveries LPG Delivery Maximum Allowed Truck Size:
SITE
Shell URN:
A433
Trading Status:
OPEN
Metro / Regional:
METRO
Operational/Reporting Region & Area:
REGION 2R2 A3
Regional Manager:
Nicolle Lawler
Ram Name:
FRANK HONAN
ColesID (StoreNo):
1597
Site:
CEXP ST IVES
Site Address:
179-181 MONA VALE RD
Suburb:
ST IVES
State:
NSW
Postcode:
2075
Phone:
(02) 9144 7455
Fax:
0291441403
SUPERVISOR
Company:
Viva Energy
Supervisor:
Tino Santos
Phone:
02 9392 1443
Mobile:
0430 378 087
Fax:
Email:
[redacted]
CONTRACTOR
Company:
ECL Group
Contractor:
Peter Carter
Phone:
0429 315 621
Mobile:
0429 315 621
Fax:
-
[redacted]”
Email:” (CB (Vol 1A), p. 1-3)
“From: KTAS SM 1597 St Ives
Sent: Thursday, 4 January 2018 5:56 PM
To: Mike Phasavath [redacted]; Ben Peacock [redacted]
Subject: Re: Amended - Retail comms for A433, CEXP ST IVES, 1597, NSW from 12-02-2018 to 09- 03-2018, RAM: FRANK HONAN , REGION 2
hey mike, just thinking about this as it's now a[p]proaching quite fast, can we check that we will still have access to our workshop at the top of the building and also the ramp leading down, as it says it will have 100% impact on the forecourt which is exactly where our bus[i]ness is situated and behind [sic]”. (CB (Vol 1A) p. 4)
“From: Mike Phasavath
Sent: Wednesday, 10 January 2018 10:21:13 AM
To: Wynn Yap; Andrew Curry
Cc: KTAS SM 1597 St Ives
Subject: St Ives CE # 1597SB - Ramp Load Rating
Hi Wynn/Andrew,
I have been following up with Belinda but have not received a response to date and my emails are [not – sic] getting returned.
Would you please be able to assist with obtaining the Ramp Load Rating.
We have had our Contractors refuse to go up the ramp due to vehicle weight and size.
Store staff have been rolling down waste oil drainers down the ramp to the trucks which is a safety concern with potential spillage and trip hazard.
Your assistance in this matter is greatly appreciated.
Kind Regards,
Mike Phasavath Facilities Co-Ordinator” (CB (Vol 1A) p. 6)
“From: KTAS SM 1597 St Ives
Sent: Tuesday, 16 January 2018 10:52 AM
To: Mike Phasavath [redacted]; Wynn Yap [redacted];
Andrew Curry [redacted]
Subject: Re: St Ives CE # 1597SB - Ramp Load Rating
Hey guys is there any news on this problem at all yet, its starting to become more than frustrating!
This is a complete health hazard at the moment so someone needs to pull there finger out of somewhere and sort it out URGENTLY!!!
WE ARE HAVING TO DRAG HEAVY OIL DRAINERS UP A SLOPED RAMP DAILY TO EMPTY. The staff are complaining it is a complete health and safety issue which it is, due to the gradient of the ramp, the weight of the oil drainers and the fact that when it rains the ramp becomes slippy.
It is currently tue jan 16th 2018, this issue has been ongoing and getting nowhere since around march 2017, I wish to hear a urgent response back from whoever can deal with by no later than friday 19th jan 2018, if you can not deal with the situation directly, please find out who can and get it sorted!” (CB (Vol 1A) p. 10)
“From: Be, Belinda
Sent: Monday 22 January 2018 05:09:04 PM
To: Krupakaran, Roshan;Shearer, Amy J
Subject: FW: St Ives CE # 1597SB - Ramp Load Rating
Attachments:
Hi Amy/Roshan,
I spoke to Mike from KTAS and he advised contractors have raised concerns around the concrete ramp loading at St Ives.
The contractors will not use the ramp until this is confirmed. This has caused safety concerns with team members.
Would you have any documentation to confirm the loading or would a qualified engineer be required to re-calculate?
The Google Map picture below shows the entry to the ramp on the left hand side of KTAS (Kmart Tyre & Auto).” (CB (Vol 1A) p. 14)
“From: Krupakaran, Roshan
Sent: Wednesday, 24 January 2018 7:42:52 PM
To: Be, Belinda
Cc: Shearer, Amy J
Subject: FW: St Ives CE # 1597SB - Ramp Load Rating
Evening Bel
Coles Express St Ives commenced trading in 2003, so I don’t know if there’ll be any documentation available
regarding engineering for the concrete ramp. I will confirm with Wayne Hua, however.
Failing this, I will engage Cushman & Wakefield to seek the advice of an engineer.
As a side note, I’m not sure if you’re aware, but the location of the red circle changes depending on how the photo is
viewed (i.e., in the Outlook pane, or in a separate window), so may be best to attach a photo edited in Paint going forward.” (CB (Vol 1A) p. 19)
“From: KTAS SM 1597 St Ives [redacted]
Sent: Tuesday, 30 January 2018 5:41 PM
To: Mike Phasavath; Andrew Curry; Wynn Yap; Mark Warren; Ben Peacock
Subject: Re: St Ives CE # 1597SB - Ramp Load Rating
Hello everyone.
Can someone please tell me if anything is getting done about this yet?
Over 1 week has passed AGAIN since the last communication, and AGAIN as usual we have communicated but in this cc'd message it seems to be quite a delayed response from anyone from Coles!
THIS IS A HEALTH AND SAFETY HAZARD!!! AS NOTED BEFORE, please feel free to read back on emails, if you decide to read them at all... hard to tell as there is not much response going on I will help by doing your surveyors job for them!
THE RAMP IS 20 METERS IN LENGTH, BY 3.1METERS WIDE BY 135MM THICK.... the construction, and structural integrity of which is in question! So 20,000 x 3100 x 135 in builders terms.
Surely it doesn't take you to have to hire rocket scientists to work out the loading capacity of this access ramp?
Our contractors are REFUSING to use it to collect our waste oil on a split level site, the tank is currently full and has been since our communications started in march 2017 we are lucky that we are ordering bulk oil in 209l drums from viva otherwise that contractor would not fill our oil tanks either.
As a direct result of this we are having on a daily basis to walk an oil boy up and down this, which is a weighty component some days more than others, also the ramp becomes very slippy when wet so this puts an extra safety error in play, sometimes one staff does this job, sometimes it takes several, so not only is it a safety precaution, but like me having to write these emails, it's a direct waste of my and my company's time in which we could be working.
someone please get onto this, asap as if were not sure of the loading of this component, are we certain it's safe for us to drive customers vehicles up and down it? or even use it for that? do I block it up and tag 3 bays and a car park out of service as a direct result of no one seeming to care or do anything about this matter? I expect a response AND action either taken or proven to be in place by no later than Friday the 2nd of February on this matter! Enough time has been wasted, someone please fix this!!!” (CB (Vol 1A) p. 11-12)
“From: KTAS SM 1597 St Ives
Sent: Wednesday 31 January 2018 01:27:34 PM
To: Krupakaran, Roshan
Subject: Fw: St Ives CE # 1597SB - Ramp Load Rating
Attachments: , ,
photos of ramp as requested - these are within the email trail, but resent as you may not be able to see that far back
the gvm of the trucks can be up to a max of 60 tonne from memory of one of the drivers, depends how full or empty his truck is before he comes to our store, but in saying that we get century battery deliverys [sic] etc also and regularly that truck is 20 tonne plus due to the lead content on board” (CB (Vol 1A) p. 31)
“From: KTAS SM 1597 St Ives [redacted]
Sent: Thursday, 1 February 2018 1:15 PM
To: Mike Phasavath [redacted]; Krupakaran, Roshan [redacted]
Cc: Be, Belinda [redacted] Coles Express Fuel and Central Operations [redacted]Wynn Yap [redacted] Mark Warren [redacted]Graham Edwards [redacted]Ben Peacock
[redacted]Steven Dodds [redacted]
Subject: Re: St Ives CE # 1597SB - Ramp Load Rating
Thanks for the updates.
Is the surveyor guaranteed to turn up today as per the email on the 30th?
No one has been out to my knowledge as of yet (unless they have been here prior or after business operating hours)
Krupakaran, Roshan [redacted]
Reply all |
Tue 30/01, 7:09 PM
Coles Express Fuel and Central Operations [redacted]
KTAS SM 1597 St Ives;
Mike Phasavath;
Wynn Yap [redacted]
+3 more
Evening All
An engineer / surveyor is expected on site either tomorrow or Thursday to conduct an investigation into
the structural integrity of the ramp.
I will keep you all updated as things progress.
Thanks” (CB (Vol 1A) p. 43)
“From: KTAS SM 1597 St Ives
Sent: Thursday 1 February 2018 04:04:01 PM
To: Krupakaran, Roshan;Mike Phasavath
Cc: Roman Gajda;Coles Express Fuel and Central Operations;Wynn Yap;Mark
Warren;Graham Edwards;Ben Peacock;Steven Dodds
Subject: Re: St Ives CE # 1597SB - Ramp Load Rating
Afternoon Roshan.
Thank you for the update again people, thank goodness I asked or else we may not even of been informed!
Our store's lease may well be with Coles Express (and not Viva Energy) as you state, but in turn as Viva Energy are the site owners, who in turn then lease the site to Coles Express, who lease it to us, can you perhaps see another circle of events about to unfold?
So far this matter has been passed back to Viva who own the site as Coles can not do anything to help, and to quote your own words "due to lack of documentation on the site", you can do nothing until something else happens.
There are enough "powerful" people from Viva, Coles and Kmart cc'd into this email, can someone just take ownership and come up with a urgent solution?
This whole matter may be well above my pay grade, but maybe it's cause i don't hide behind a desk, maybe it's because i'm customer facing and know how to handle a fault, i sure as hell would not be doing the pass around in a situation like this, i would be fixing it and worrying about who pays for what later! Like i say it's above my pay grade so i cant, but i'm pretty certain one of you guys can from your desk!
I am happy to pass this higher and further to our national manager and CEO to fix with people on there pay grades if no one here with responsibility can use there responsibility to responsibly deal with the situation promptly.
Simon” (CB (Vol 1A) p. 54)
Mr Phasavath of Kmart was seeking an “interim solution” in his email of 1 February 2018, as this was now “a major safety concern” (CB (Vol 1A), p. 36). Between 1 and 8 February 2018, Viva was involved in engineering inspection, but it is clear from the engineers’ complaints that the plaintiff’s questions to the engineers were unwelcome.
After the engineer’s visit, the plaintiff and his employers continued looking for interim solutions:
“Q. Mr Bibby, could you go please to tab 30 of volume 1 of exhibit 1? Do you have that? That’s an email from you on 13 February 2018.
A. Yes. It’s an email from me on - what? Sorry. Could you ask again?
Q. On 13 February 2018, that’s an email from you?
A. It is indeed. Correct.
Q. Now, the recipients are a gentleman, Mr Phasavath, P-H-A-S-A-V-A-T-H, Roshan, and Amy Shearer, and there are various other people. So it appears to be quite a wide ambit of people you’re discussing this issue with. Do you recall sending this email?
A. I do.
Q. So this was an email I think you sent shortly after you had the inspection with the engineer?
A. It is.
Q. Whose name is Mr Suarez, S-U-A-R-E-Z. And you make a number of observations in the email. And then, in the last two lines of the second paragraph, you say, “So we will have to rethink and manage differently these jobs on site and maybe even have to allow different time frames for completion of work of vehicles.” Sir?
A. Just reading it. Sorry. One second. Correct. Yes.
Q. Now, at this point, or shortly thereafter, did your employer conduct any kind of risk assessment to your knowledge?
A. The risk assessment was already given with the 2.5 tonne mark and provided to the site owners who—
Q. So, you understood the engineer’s visit, and I think there was a subsequent report as being the risk assessment?
A. The risk is noted there, the 2.5 tonne is the notable risk.
Q. Were arrangements then made to speak with the oil delivery and retrieval people to see if they can send trucks of that tonnage to the site.
A. Again, I don’t know the answer to that because that’s above my pay grade.
Q. There was no attempt, as you understand it, by your employer to provide an alternate system to get the “oil bois” from downstairs up the ramp to the trucks. That’s right?
A. My employer and myself had exhausted all our resources on what interim systems we could put in place. We’d looked into, and I will suggest I’d looked into personally. I’d even brought in stuff from home to try and rectify the situation. I’d changed the wheels on the cart to try and make them more stable, it didn’t work because they jammed against the cart that we trolleyed. Things like a pallet truck would not work on site because of the - firstly, to try and get onto the ramp, you couldn’t secure the “oil boi” properly to the pallet truck because it’s not something that’s palletable, and also the gradient of the ramp and how steep and slippy it was, it wouldn’t go up it.
Q. A forklift would have been able to be used to take these “oil bois” up and down the ramp; correct?
A. What weight is the forklift, sir?
Q. Sorry?
A. What weight is the forklift, sir?
Q. A small forklift.
A. So you’re talking 2.5 tonnes plus?”
(Tcpt 145 – 6)
“Q. Was any attempt made by your employer, to your knowledge, to investigate the ability to use a forklift?
A. To my knowledge, there was no - by my employer, but I had looked into that sort of thing and the only things I could find were heavier Kubota style forklifts, all the rest of it, which still wouldn’t work or operate properly, a) because of the gradient of the ramp, it was steep, it was slippy [sic], but also the fact that whenever you come to the top of a ramp, I’m not sure if you know how ramps work, but there’s a flat edge and a steep edge, and the forklift and down that ramp.
Q. Well, that’s the view you formed?
HER HONOUR: Well wait a moment, I’m sorry.
Q. You said forklifts, I didn’t hear this, forklifts wouldn’t go over this steep edge, is that because they’re low slung?
A. They’ve got a very low centre of gravity, meaning that the wheels and the carriage of the forklift themselves literally sit within a matter of a couple of inches off the ground. The only style of forklift you could have actually accessed and done it with - and I will say, yes, you could have done it with a forklift, would be a Manitou wouldn’t go over that because cars themselves at a higher body scraped going over.
(Tcpt 146 – 147)
“From: KTAS SM 1597 St Ives
Sent: Tuesday 13 February 2018 08:41:43 AM
To: Mike Phasavath;Krupakaran, Roshan;Shearer, Amy J
Cc: Liam Scale;Coles Express Fuel and Central Operations;Wynn Yap;Steven
Dodds;Ben Peacock
Subject: Re: St Ives CE # 1597SB - Ramp Load Rating
Good morning all.
Thank you for finally being proactive and having the engineers attend the site yesterday to do there tests for the ramp's loading capacity.
The head engineer who attended the site, Gerardo Suarez was not overly impressed with the condition of the ramp, and has advised us at the store to not drive any vehicles of more than 2.5t down or up the ramp, until his final findings and calculations come in, which will take a few days/weeks to process.
How does this affect us at store level? Quite a few of the vehicles we see day to day are around the 2.5t mark in weight if not over. it will directly affect the stores ability to perform works on certain vehicles, mainly of the 4x4 variety, vehicles like 200 series landcruisers, nissan patrols, a lot of tradies ute's and van's that contain equipment and tools also. the down ramp area of our workshop is predominantly used for servicing of lower roofed vehicles and tyre jobs on any vehicle, so we will have to rethink and manage differently these jobs on site and maybe even have to allow different time frames for completion of work to these vehicles.
Thanks
Simon” (CB (Vol 1A) p. 72)
On 19 February 2018, the structural engineer reported to the first defendant. His recommendations were for temporary propping to be installed immediately, for a sign limiting traffic on the ramp to 3 tonnes and for structural remedial works engineers’ specification documents be prepared to correct damage and defects in the ramp structure. After the remedial works had been carried out, traffic on the ramp would still need to be limited to 6 tonnes. If a heavier vehicle load was required, a structural engineer would have to be engaged to coordinate site investigations and carry out a corresponding structural design (Exhibit 1, p. 178). This would clearly be work to be carried out over a period of time, but no consideration was given to what should happen to vehicles needing to access the site during what was likely to be a lengthy period. This was an essential part of the work the first defendant should have required the engineer to carry out. By way of analogy, any plan for roadworks during a road closure would need to consider where traffic seeking to use the road would have to be diverted to, while the roadworks were being carried out.
On 6 March 2018, the plaintiff emailed the following:
“From: KTAS SM 1597 St Ives
Sent: Tuesday 6 March 2018 11:57:32 AM
To: Mike Phasavath;Allan Seage/AUS;Krupakaran, Roshan;Shearer, Amy J;Olivia Kay/AUS
Cc: Liam Scale;Coles Express Fuel and Central Operations;Wynn Yap;Steven Dodds
Subject: Re: St Ives CE # 1597SB - Ramp Load Rating
G'day gents.
Just back to work today after nearly 3 weeks of a break, i was excited and looking forward to reading the updates on this, but it seems there are none.
hopefully it's not been forgotten about again or put to the bottom of the pile.
Looking forward to hearing the outcome for this asap, ie the ramp loading, and if that's not going to happen any time soon, i'm really looking forward to hearing what options to drain the oil tank downstairs your going to put in place with immediate effect.
Thanks
Simon” (CB (Vol 1A) p. 78)
On 6 March 2018, Mr Phasavath was asking about options to drain the oil tank downstairs to be “put into place with immediate effect” (CB (Vol 1A) p. 78).
Also on 6 March 2018, Mr Krupakaran contacted Mr Seage of Cushman & Wakefield to arrange a quote to carry out the work recommended by the structural engineer. This was passed on to a builder. However, nothing was done and it was necessary for Mr Krupakaran to send a reminder email to Mr Seage, who replied “sorry for the delay on this” and sent it later that day.
The first defendant’s employees left out the plaintiff from the email chain deliberately. On 7 March 2018, the plaintiff further emailed:
“From: KTAS SM 1597 St Ives
Sent: Wednesday 7 March 2018 11:49:23 AM
To: Mike Phasavath;Krupakaran, Roshan
Cc: Shearer, Amy J;Allan Seage/AUS;Olivia Kay/AUS;Coles Express Fuel and Central
Operations;Liam Scale;Wynn Yap;Steven Dodds
Subject: Re: St Ives CE # 1597SB - Ramp Load Rating
Gday people
Thank you Mike for having the decency and common sense to forward that critical information to myself.
And Roshan, NEVER REMOVE myself from an email with critical health and safety information like that again! I am the manager of the site which is in question, and you are replying to everyone but myself as to the current situation of the health of the ramp and the safety of my customers and staff who have to drive there vehicles up and down this! You your self may not know much about motor vehicles but i can tell you promptly i have several vehicles with myself for work today and almost every day of the week off over that load rating of 3 tonne gvm that has been recommended by the engineer, and as Manager it is up to myself to control these bookings and where the vehicles get driven and parked. Not only that but you may also not be aware but the service station site is currently undergoing it's V2 upgrade which makes this an even greater challenge with moving vehicles and having correct parking for correct vehicles due to the scatter of work vehicles that is currently littering your coles site!
See it as a joke if you wish, but DIRECT contact with myself is required on these matters, especially as like i say it puts the safety of my customers and staff at risk, not to mention the ramp is a structural roof to the lower part of the building we work in!
Yours
Simon!” (CB (Vol 1A) p. 85)
“From: KTAS SM 1597 St Ives
Sent: Tuesday 13 March 2018 11:55:36 AM
To: Mike Phasavath;Krupakaran, Roshan
Cc: Shearer, Amy J; Allan Seage/AUS;Olivia Kay/AUS;Coles Express Fuel and Central Operations; Liam Scale; Wynn Yap; Steven Dodds
Subject: Re: St Ives CE # 1597SB - Ramp Load Rating
Good day gents and ladies,
Just thinking about this current situation with the engineers load rating of the ramp being a MAXIMUM of 3 tonne gvm, and the safety implications involved in this. Would it be worth some one's while organizing some signage for the site and ramp to inform any customers, contractors and any other persons that may use the unsecured car park area the ramp leads to outside of business hours of this?
Not trying to tell people there jobs, but i know i would not like to be liable for any accidents or mishaps that happen personally due to this neglect of information on a safety related matter.
Thanks
Simon” (CB (Vol 1A) p. 87)
On 20 March 2018, Steven Dodds emailed all stakeholders requesting rectification within two weeks or an “interim solution to pump oil ‘up and out’ from the lower level (CB (Vol 1A), p. 88). This appears to have been what inspired Mr Krupakaran to chase up Mr Seage for a response to his email of 6 March 2018.
On 27 March 2018, the plaintiff sought a further update from the defendants:
“From: KTAS SM 1597 St Ives [redacted]
Sent: Tuesday, 27 March 2018 12:00 PM
To: Allan Seage/AUS; Mike Phasavath; Krupakaran, Roshan
Cc: Shearer, Amy J; Olivia Kay/AUS; Andrew Curry; Liam Scale; Wynn Yap; Steven Dodds; Ben Peacock;
Anthony Reynolds
Subject: Re: St Ives CE # 1597SB - Ramp Load Rating
Hey guys,
Hope all is well.
Is there any more information on this? Plans to rectify, when works will commence etc etc? The current situation is having a direct impact the store's business, and we need it fixed ASAP to resume trading like normal!
Any and all information would be greatly appreciated.
Thanks
Simon” (CB (Vol 1A) p. 99)
There was no reply to either of the emails sent in the previous fortnight. The plaintiff suffered his accident on 5 April 2018, which by coincidence was the same day that the quotation from the builder to carry out the work was approved (CB (Vol 1A) p. 106-107).
On 3 May 2018, the plaintiff emailed:
“From: KTAS SM 1597 St Ives
Sent: Thursday, 3 May 2018 3:04 PM
To: Steven Dodds [redacted]
Cc: Ben Peacock [redacted]; Graham Edwards [redacted]
Subject: Re: St Ives CE # 1597SB - Ramp Load Rating
Any more updates on this?
Are we getting plumbing installed to remove the waste oil from the downstairs tank?
recently we ordered an oil collection 1 week prior to our tank requiring being emptied, that was 5/4/18, unfortunately the waste oil company we use are useless and they did not collect the oil for over 2 weeks. our tanks were both full (one ongoing and the second filled over the neck on 12/4/18), as were our oil boys and any other containers we had so we had to use the waste oil separator tank to put our waste oil into, im pretty certain that environmentally this was not the best solution, but due to the current ongoing situation being presented to us in the store with no solution seemingly in sight (or for that even being considered with the lack of answered phone calls and messages, and no calls back).
simple question, Who is going to do What, and When?
this has now been ongoing for well over 1 year, can someone please get something sorted?” (Exhibit 1 p. 336)
Ms Shearer was involved in many of the email exchanges set out above.
Ms Shearer denied that she thought the plaintiff was “a pest” for asking for an interim solution when faced with the first defendant’s continued delay:
“Q. Wasn’t the first step to act on the word “urgently”, that had been used on a number of occasions, to find an interim solution from 1 February?
A. Because I’d assume that’s - but we weren’t responsible for that interim solution.
Q. Did you regard Simon Bibby as a pest, Ms Shearer?
A. No.” (Tcpt 297)
“Q. This is nearly a month after the first notification, well, just short of a month, on 16 January 2018. Do you follow? The email reads this, “Hi Roshan and Amy. I have been contacted by Steve Hodge from Kmart about this job. The site was pestering the engineer on site to get some indication of load for this ramp yesterday. And the engineer told the Kmart manager that in the interim not to exceed 2.5 tonne until the specimens were analysed and final report released. Modus has advised this is not standard practice, that all comms come through CW in future.” What was CW understood by you to be an acronym for?
A. Cushman Wakefield.
Q. Continuing, “This may cause some comment from Kmart and I apologise for any inconvenience caused. Below in bold is the response from Modus.” And I won’t go into that. It’s just technical information. Do you recall receiving that email about the site manager at Kmart engaging with the engineer, or not?
A. Yes.
Q. I’ll ask the question again. Did you regard Mr Bibby, or at least the site manager, to be a pest at or about this time or not?
A...(not transcribable)..pest specifically. He was very pushy. And you can see by the correspondence, with the capital letters, he was, yes, very - quite aggressive in his approach.
Q. Aggressive and pushy, I think, are the two adjectives that you’ve just used. Is that correct?
A. Yes.
Q. Could it be that he was aggressive and pushy because he was desperate for a response and an interim solution?
A. Yes.” (Tcpt 299)
“Q. I suggest to you that you did at 11.50am. Your response was to Roshan and Alan Seage and Olivia, and you wrote this, “Thanks, Alan. I second what Roshan said below. It wouldn’t have been easy.” What did you mean by that sentence, “It wouldn’t have been easy”?
A. Don’t know.
Q. You then continued, “There is no need to respond to the email he sent earlier. He can go through to CEXP as he should anyway. Thanks. Amy.” Do you recall writing that?
A. Not specifically.
Q. CEXP was Eureka, was it not?
A. Yes.
Q. You’re smiling. Do you regard this as funny, Ms Shearer?
A. No. Sorry. I’ve been sitting in one spot for a long time.” (Tcpt 300)
“Q. “On 1 August 2025, I received a phone call” - this is Mr Seccombe - “from my instructor at Viva, in which I understood Viva had been contacted on that morning by Ms Amy Shearer, one of Viva’s witnesses in the proceedings”. Do you understand?
A. Yes.
Q. “I understood that Ms Shearer had advised that, during the night of 31 July 2025, she had remembered previously creating a SharePoint of emails relating to the St Ives premises”. Do you understand that?
A. Yes.
Q. “I was also informed that, subsequent to remembering the new emails, Ms Shearer had shared them with Viva on the morning of 1 August 2025”. Do you understand that?
A. August? I’m not - not specifically that date. But yes, sure.
Q. Can we go back to my original question, then. Have you assisted Viva in producing documents in compliance with a subpoena compelling the production of Viva’s documents?
A. I wasn’t involved in the subpoena process, so I didn’t know about that. But I did recall, as the affidavit says, that I had created a SharePoint drive as part of an old project when I was - had moved into my new role, and that did occur to me. And I provided that information through--
Q. The SharePoint, where was that located? On which system, Viva’s, your own, or elsewhere?
A. Viva’s.
Q. Where precisely on Viva’s system did you create?
A. I don’t know where, precisely.
Q. You don’t recall?
A. I don’t know exactly where the link was. But it was through their SharePoint system.
Q. What was the purpose for you preparing or creating that SharePoint system?
A. Sorry? I’ve missed that question - the start of it.
Q. Why did you create the SharePoint system for them?
A. Yep. Sure. So when I moved into my new role in 2019 as the head of property management, I was trying to create a global inbox which all my team could use to share emails. And at that time, I was the first one, because I managed New South Wales. I dragged all of my emails into that inbox at that time, 2019-ish, and - and then the project stopped because it took too long to drag the emails in, but mine are a quarter in there.
Q. So how did you get access to those if you don’t work at Viva in order to provide access to these documents to Viva on the morning of 1 August 2025?
A. I don’t have access to them.
Q. Sorry, did you not provide or share these documents with Viva on 1 August?
A. No, I didn’t share the documents. I called an old colleague to see if he still had access, and then he found them on the SharePoint. I didn’t have access to them.
Q. And how many emails do you think were saved to the SharePoint, Ms Shearer?
A. I don’t know. Probably thousands.” (Tcpt 284 – 285)
A call for these documents was made. They were never provided.
Ms Shearer was not a witness upon whom any reliance could be placed. As the above extract from the transcript show, she started with denial (one example being at Tcpt 290, line 22) and when confronted with her own documentation or statements she had made to the solicitor representing her employer, she claimed not to be able to remember (her response being at Tcpt 290 line 25). She claimed to be unable to locate the documents because the system was not very well organised (Tcpt 286). She acknowledged that she had called the plaintiff a “real pain” and her approach towards him was one of disdain. She considered he should have been writing to Eureka, the second defendant (Tcpt 294), although she was well aware that the work that needed to be done was structural, that it was her employer’s obligation to provide an engineer, and that an interim solution could not be put in place without her employer taking part.
Mr Krupakaran shared her view of the plaintiff, as the correspondence set out above demonstrates. He also claimed to be unaware of there being any structural concerns in 2017:
“Q. So this is 16 January 2018. We’re talking about March 2017, about 11 months earlier. Long-running issue?
A. Long-running issue. But I think at that point Viva weren’t aware of any structural concerns.
Q. I’m sorry, I didn’t understand what you just said. You thought at that point there weren’t any structural concerns? Is that what you said?
A. No, that’s not what I said. Sorry, to be clear, at that point, as far as I was aware, there were no structural concerns with the ramp at St Ives.
Q. Well, if you had people refusing to travel down the ramp because of a ramp railing, what did you understand the issue with the ramp to be?
A. I wasn’t aware of any issues with the ramp railing prior to them using..(not transcribable)..which was actually, I think, probably a little while after this.
Q. All right. Were you involved in the railing repair on this ramp prior to January 2018?
A. Not that I can recall.” (Tcpt 335)
“Q. That’s the quotation that you received from Mr Attard through Mr Dodds; is that correct?
A. Correct.
Q. Grand total of $2,695?
A. Yes, I can see that there.
Q. That amount could have saved - I’d suggest to you - my client from being injured?
A. Potentially, yes.
Q. You didn’t approve this modest quotation though; did you?
A. I believe I did approve the quote, actually. I think it took about a week.
Q. I suggest to you that you did not approve James Attard to do the work. You had Coles go off and get another quotation for the work; did you not?
A. I don’t recall that to be the case, but I might be mistaken.
Q. In any instance, this was a pretty small job, wasn’t it?
A. Yes, it was a very small job.
Q. A very small job that could be attended to very quickly. Do you accept that?
A. Yes, agree.
Q. Within a matter of a day or days, do you accept that, if you had approved it; yes?
A. Sorry, could you repeat your question?
Q. It’s a small job that could have been done within a matter of a day or days of approval. Do you accept that?
A. Yes, correct.
Q. And there was no reason why this sort of work at a modest cost could not have been initiated by or approved by you at some stage from 22 January 2018. Do you accept that?
A. No, I don’t accept that. I - I don’t feel, and I’ve said this all along, that the onus was on Viva to develop a solution to what was an operational issue. And if KTAS saw that there was a safety risk, the onus should have been with them to come up with a solution. And I’ll say again, took us less than a week, or about a week, to approve once we had a proposal. That was the first proposal we received from anyone.
Q. That’s because you didn’t ask for a proposal. They were asking you for one, sir.
A. Again, I don’t feel like we should have - we should have proposed a solution. That wasn’t for us to propose; it was an operational issue.
Q. Even after receiving this modest cost in this invoice you still try to avoid liability for paying for this small job, did you not?
A. I don’t believe - I don’t believe that to be the case at all.
Q. You don’t recall having tried to defer the liability for this sum of $2,695 to either Coles or Kmart?
A. I don’t believe that we deferred liability in any way.” (Tcpt 355 – 356)
These admissions must be the death-knell for the first defendant’s claim that they had acted with reasonable celerity. He and Ms Shearer were obfuscating because they did not think their employer should have to do anything but instead of telling the plaintiff and Kmart this, they were stringing them along, probably because they regarded the plaintiff as a “pain” (as described in one email).
The above extract is an example of this witness, like Ms Shearer, taking refuge behind a claim of being unable to recall, until confronted by documentation they had either read or authored at the time. Another example occurred at Tcpt 336:
“Q. Despite receiving that notice about the need for something to be done urgently, as the Kmart store manager at St Ives put it, you did nothing urgently to address this issue, did you not?
A. We worked with Cushman & Wakefield to get an engineer out there to make an assessment as to the structural concerns, because at that point nothing had been validated.
Q. In fact, I want to suggest to you that you did nothing to communicate to either Coles or Kmart Tyre and Auto about what was being done until 30 January 2018. Do you accept that?
A. If that’s what the email evidence shows. I can’t recall.”
Mr Krupakaran was not a witness upon whom any reliability can be placed. His poor recollection of events and obvious hostility towards the plaintiff can be seen in many of his answers.
The plaintiff asked me to draw inferences in relation to these witnesses’ knowledge of documentation not produced to the court, to the failure to call Ms Be, and to the adequacy of answers to subpoenas and calls for documents in the courtroom.
The plaintiff asks the court to draw inferences from the first defendant’s failure to call witnesses (Jones v Dunkel [1959] HCA 9; (1959) 101 CLR 298), the failure to ask witnesses who are called (by either side) about material matters (Commercial Union Assurance Company of Australia Ltd v Pty Ltd (1991) 22 NSWLR 389; and the failure to tender relevant documents (Jones v Dunkel at 320-321). Mr Del Monte stopped short of seeking an inference of the destroying of relevant documents (Allen v Tobias [1958] HCA 13; (1958) 98 CLR 367 at 375-376, although the admission of “thousands” of documents being put into another location where they cannot be found comes close to an admission of removal and/or destruction. Mr Del Monte submits that the other inferences are all matters which the Court ought to take into account in deciding whether both defendants but in particular the first defendant, have discharged their respective burdens of proof.
In Al Muderis v Nine Network Australia Pty Limited (Trial Judgment) [2025] FCA 909 at [136], Abrahams J explained the drawing of such inferences as follows:
“The rule is that the unexplained failure of a party to give evidence may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party’s case, so entitling a court to more readily draw an inference against that party: Jones v Dunkel at 308, 312, 320-321; Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1 (Cubillo) at [353]. The rule only applies where a party is “required to explain or contradict” something. No inference can be drawn unless evidence is given of facts “requiring an answer”: see Jones v Dunkel at 319, 321-322; Cubillo at [355]; Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 at [51]; Fonterra Brands (Australia) Pty Ltd v Viropoulos (No 3) [2015] FCA 1050 at [103]. The rule is not to be used to complete gaps in the evidence or to convert conjecture into inference. As explained in Cubillo at [353], while it is possible to state the rule in general terms, its application must be considered in relation to each situation in which a witness is alleged to be absent.”
“Q. Your employer took no steps whatsoever to get the advice of an independent expert in occupational health and safety to devise different methods to move the “oil boi” up and down the ramp; yes or no?
A. You would have to ask that question to my - I do not have that answer, I’m sorry.
Q. Okay.
A. Again, above my pay grade.
Q. Who was the person, doing the best you can, Mr Bibby, at Kmart who would have been able to make those kinds of arrangements of organising an independent expert to give advice to Kmart?
A. Would have been our store support team.
Q. What was the name of the person who you believe would have been the person who could have retained such an expert?
A. When we dialled through on the phone, it was store support, press 1 for building, press 2 for HR, press 3 - the name, I didn’t have a direct name. The only reason I’m in these emails is due to my - this email trail is a secondary part of the first part of me going, there is a fault, please fix it. No belief coming off anyone was doing anything on either side, knowing that myself and my employer’s hands were tied, that we have to have permissions from Coles and Viva for doing anything on the site operationally. I’m--
Q. And are you saying - go on.
A. Please stop cutting me off. So with that in mind, we have done everything, I’ve been going there’s nothing happening from February or from the March that I first reported it all the way through to a certain point when the emails first start to begin, because a person of my level in a store - as a store manager does not get cc’d into emails with people from Coles Express or Viva unless my employer is trying to prove that they have done, at this point, everything they can within their powers and control.
Q. Are you saying that Kmart, when you worked there, didn’t have a safety officer?
A. Kmart had a safety team, I believe.
Q. Did you get in contact with them about this issue of devising a different system to move the “oil bois” up and down the ramp?
A. They would have been the people who would have spoke to the people who started the first - started me in the first email trial, because that would have been who’s responsible, they pass it to the appropriate department.
(Tcpt 148; highlighting added)
What the plaintiff is saying here is that his inclusion the email trail is only part of the story, and that he was included in those emails because he kept sending emails to, and contacting, both defendants, saying “there is a fault, please fix it”, but he understood that his employer was carrying out its own correspondence as well. Nothing more could be done because “myself and my employer’s hands were tied” because “we have to have permissions from Coles and Viva for doing anything on the site operationally.”
Kmart had started making inquiries about the weight able to be supported by the ramp before the plaintiff commenced work there. The evidence points to a continuation of this after he commenced, principally because the plaintiff was taking such an active role in asking the defendants to “please fix” this ongoing problem. The plaintiff was asked whether Kmart had considered pumping the oil to avoid having to drag heavy “bois” up and down:
“Q. Doing the best you can, who do you believe you may have had this discussion with about pumping the oil from downstairs?
A. I believe that’s been an ongoing discussion throughout the email chain about getting - removing the oil.
Q. Just confine it to Kmart for the moment, in terms of you and the people who were your supervisors, who do you believe you would have had a discussion with about pumping the oil from downstairs?
A. Area leaders, store staff, everybody sort of involved with the day-to-day, whoever was running the facilities, manager of Kmart Tower and Auto Service, all the people involved in the email trail from Kmart.
Q. And can you tell us when it was that you had a discussion with someone who was a supervisor of you about pumping the oil from downstairs? When was that?
A. Prior to this date.
Q. Doing the best you can, do you know how long before this date?
A. Well, the key - I don’t know how long, but the key terminology is the oil must be pumped out of the tank. So any conversation I had was about pumping the oil. So the oil must get pumped out of the tank and emptied. And that’s in many emails prior to this. You can’t - you know, there’s no other way to remove it.
Q. The emails that you’ve seen in 2017 where you refer to the pumping of the oil from downstairs?
A. That’s terminology, and you’re sort of twisting it a little bit, because it’s how you empty the tank.
Q. No, I’m not. Mr Bibby, I’m simply asking you about the phrase that’s being used in this email. “Oil can be pumped from downstairs.” Do you understand that?
A. I’ve used the words removed, requires removal.
Q. Okay. Is there a difference you’re seeking to make between removal and pumping?
A. Well, removal, the process of removal is pumping it out, so.
Q. Okay. Is what you’re really saying, the process of suctioning from using the truck or is it an independent pump that’s actually pumping it from the lower tank upstairs?
A. You could probably do both options.
Q. Okay.
A. The suction option was actually out of the question because the tanks themselves had - the trucks that refused to suck, so that was out of the question. There was no physical way of doing that.
Q. To your knowledge, did Viva ever refuse to agree to an alternate system where oil will either be removed or pumped from downstairs?
A. They never refused, to my knowledge, but they also never assisted, which was what this email trail was asking for.
Q. You say they never assisted, what is the basis of that evidence?
A. The basis of that is there was no - we - my email trail is clearly showing a state of frustration where I’ve asked my employers for the assistance. My employers and me, knowing our hands have tied, have obviously been in talks with Viva, Coles, all the people who need to be aware, asking and seeking alternate solutions. I’ve actually made those words, alternate solutions, in my emails. So—
Q. The alternate solutions that you referred to in the prior emails do not specify words such as “pumped up from downstairs” or “removed from downstairs”, do they?
A. They do, remove from the waste oil tank downstairs, yes.
Q. That’s referred to in your prior emails, is it?
A. That will be in prior emails, it needs removed.
Q. So you’re clearly disclosing a process of some kind of pumping or removal?
A. It needs removed, yeah.
Q. What I’m suggesting to you is that as soon as the issue was raised regarding pumping, it was acted on by your employer, Kmart, who obtained a quote on 7 May 2018 from a plumber?
A. That’s a year after the fact, after we’ve been seeking assistance, all the rest of it. We’ve implemented all our ways possible that we can think of as people who do this job. We’re not - I don’t know how to even describe or what term you would use, we’re not structural engineers or whatever it is, or people who design these systems and implement them across businesses, and out of a stroke of luck we’ve had a thought of maybe this might work, we might put it in and try and no one else is helping with anything, so we’ll pay for it regardless, it’s the company was going to pay for it no matter what was going to happen to try and get this tank sorted out, the situation sorted out. Because there was - for a year we’ve had zero assistance, everybody was concerned about the ramp they forgot the part of my business—"
(Tcpt 153; emphasis added).
Mr Baran objected to this answer on the basis that it was a “speech” rather than an answer, but I consider this to be an accurate summary of what occurred.
Even after the plaintiff’s injury, Viva continued to delay acting in order to “fix” the problem. Kmart had obtained a quote from a plumber, on the basis that this repair had taken “way too long to be fixed” and an employee had now been injured (Tcpt 154). That work was approved by Viva but they sought a quotation from Coles for the work. As the plaintiff volunteered from the witness box (at Tcpt 156): “It took someone to be injured for it to be put in place”.
Mr Ben Peacock, the Regional Manager for Kmart, gave evidence concerning the response by Kmart to the problems with the concrete ramp. He explained how the problem with the ramp first came to Kmart’s attention and what he did:
“Q. And were you personally aware of what those difficulties were or whether there were workarounds with those difficulties?
A. Yeah, so unfortunately the oil was the big main concern. We had a - essentially, every time you drain the oil out of a car, we drained it into an oil robot, which is what it’s called, and we used to drain that oil from the robot into a tank that we had downstairs. Unfortunately, because the oil truck could not get down the ramp, it was unable to empty that tank downstairs. So what that forced the guys there to do was to actually bring the oil robots up the ramp to the top workshop and drain the oil into the top tank to allow drainage from the oil tanker.
Q. Did you personally observe the gentlemen working at the St Ives stores performing that task, manoeuvring the oil robots up the driveway?
A. Yes, I did.
Q. All right. Now, you should take it that there’s no dispute that Coles Express and or Viva had some involvement at the St Ives store, so that’s not an issue in these proceedings. Did you in respect of the St Ives store, during the course of your role as regional manager, have any dealings with either Coles Express or Viva in respect of this ramp issue?
A. Not directly in person, but via emails. Yes, we had a lot of correspondence with them.
Q. You can take it that we have copies of the emails in court. From your perspective though, in relation to the emails that you were sending on behalf of Coles - Kmart, rather, what was it that you were trying to achieve in respect of those emails?
A. Initially, we were just trying to find out about the load rating of the ramp to see whether or not we could get a - you know, a - a smaller truck to maybe go down the ramp, a three-tonne truck, something like that. So the first aim was always just to try and get a general idea of the load rating of the ramp between the two workshops.
Q. And was there an immediate response to that or not?
A. No, there wasn’t.
Q. And did things develop from there?
A. No. Things were at a - at a stalemate, I guess. There - there was very slow proceedings. It looked us down the track to have a look at other options, rather than actually trying to get the truck down the ramp.”
(Tcpt 248)
“A. There were two options that were - that were being discussed. One was to cut a hole in the floor upstairs and run a pipe down through the concrete brickwork into the downstairs workshop, which would allow us to draw the oil out of the bottom oil tank. The other was to put a lift, so once again, cut a hole in the floor, put a lift in, that would then allow us to move oil and tyres up and down through the lift.
Q. Now, the first option, cutting the hole into the floor to run the pipe, is that something that, to your knowledge as regional manager, Kmart could do itself or not?
A. Absolutely not, no. So we were unable to do any changes to the premises without permission from Coles Express.
Q. And was that permission which you were seeking at some stage as regional manager from Coles Express or not?
A. So that would typically come from Kmart Tyre and Auto’s - what would you call it? We had somebody that basically looked after the premises, looked after repair work, construction, things like that. So the request would generally come from him.
Q. And were you aware personally that those requests were being made?
A. Absolutely, yeah. They were all in the emails that I was copied into.
Q. And the second option, the option of running a lift between the two levels, which I understood you to say required again a hole to be cut into the floor, is the situation the same again, namely, that Kmart Tyre and Auto could not have done that without prior approval?
A. Absolutely.
Q. And who would that prior approval have had to come from? Is it the same entity or a different entity?
A. Yes, it is. Yeah.
Q. And just to be clear, that’s, from your understanding, Coles Express?
A. Correct, yes.” (Tcpt 249)
“… It wouldn’t be - it wouldn’t be unsurprising to have cars sitting on the road waiting to turn into the service station to get their fuel. So Kmart Tyre and Auto were typically not allowed to park cars up the top in the - in the forecourt. All the cars would have to be downstairs by the - the side ramp.
Q. When you say Kmart Tyre and Auto were not allowed to park up at the forecourt, who was not allowing - or which entity, rather, was not allowing Kmart to do that?
A. The Coles Express store.
Q. In terms of the bays, I understood you to say that the lower level of the premises had four work bays. Is that correct?
A. Yes. That’s correct.
Q. And that was the larger of the two, the upper and the lower?
A. That’s correct.
Q. In terms of the logistics and closing down a level or restricting access to a level, what is the complexity of that from a Kmart regional management perspective? So what would that activity have required from Kmart’s perspective?
A. If we were to try and shut down the lower level of this entire store, you would have had to have closed the whole store.
Q. And why do you say that for?
A. Well, for a few reasons. Number one, they only had two hoists upstairs. You wouldn’t be able to get through the - the workload, the cars booked in via two hoists or two work bays upstairs. The second thing was that all the cars were parked downstairs. So if we were - the cars were parked downstairs, a lot of the equipment was used downstairs, so if you were to block the ramp, or take away the downstairs, you would take away the whole functionality of upstairs as well.” (Tcpt 250)
“A. To pump oil out of the oil robot, you have to force it out under pressure. So to then look to try and put that into a 20-litre drum, to watch it, to make sure it’s not overflowing, to make sure it doesn’t spill, it’s a tricky option that would take a lot of time, and it would be unnecessary.”
Mr Peacock’s evidence makes it clear that Kmart approached both defendants because both defendants would clearly have to cooperate for any repairs to be done. Everything from the ability to trade on both levels of the building to parking to safety would be affected.
It should not have been a matter for Kmart or for that matter the plaintiff to parse and analyse the obligations of the first and second defendants in their contractual obligations, the precise details of which would not have been known to Kmart in any event. The only sensible course to take, as Mr Peacock made clear, was to make sure that everybody knew. This is what Kmart did.
I am satisfied that Kmart did everything it could and should do in order to have the repair work identified and carried out. I particularly take into account that there was no layman solution to this problem. The real difficulty for Kmart was that the work carried out by the engineers itself added to the uncertainty as to what should be done. As Mr Polin SC sets out in his submissions, by limiting ramp access to vehicles of 3 tons, the first defendant in fact created the problem which led to the plaintiff’s accident. The solution to the problem was not found by the engineers who came to inspect the site; it was left up to Kmart to obtain further advice about a solution, interim or otherwise, and even then there were difficulties getting the first defendant to accept and pay for the work.
“5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless--
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)--
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.”
Section 5B(1) requires that the risk was foreseeable and not insignificant, and that a reasonable person would have taken precautions. Section 5B(2) deals with the probability and likely seriousness of the harm and the burden of precautions in social utility.
In Jones v Bartlett at [27] – [35], Gleeson CJ stated:
“[27] The appellant claimed that the respondents were in breach of their contractual obligations under the lease, as extended by the Residential Tenancies Act 1987 (WA). He also claimed that, by reason of s 11 of the Property Law Act 1969 (WA), he was entitled to sue for such breach even though he was not a party to the contract.
[28] The first of those two propositions was rejected both by Commissioner Reynolds and the Full Court. On that basis, the second proposition did not require determination, although views adverse to the appellant were expressed about it.
[29] The lease obliged the tenants to keep the premises in good working order, fair wear and tear excepted, and to keep (amongst other things) all doors, including glass doors, in the same condition as they were at the commencement of the tenancy, fair wear and tear excepted. Commissioner Reynolds found that, at the time of the accident, there was nothing about the condition of the door that required repair. "It was essentially as good as a new door of its type."
[30] Section 42 (1) of the Residential Tenancies Act provides:
"42 (1) It is a term of every agreement that the owner –
(a) shall provide the premises in a reasonable state of cleanliness;
(b) shall provide and maintain the premises in a reasonable state of repair having regard to their age, character and prospective life; and
(c) shall comply with all requirements in respect of buildings, health and safety under any other written law in so far as they apply to the premises."
[31] The lease did not contain any provision which excluded, modified or restricted the operation of s 42.
[32] It has already been noted that there was no legislative or regulatory requirement that the glass in the door in question had to be thicker or tougher than it was. If it were being replaced, the new glass would have to be thicker or tougher, but, unless and until that occurred, there was no requirement of the kind referred to in s 42(1)(c) of potential relevance. There was no failure to comply with any such requirement.
[33] As to s 42(1)(b), Commissioner Reynolds held that the premises were at all material times in a reasonable state of repair having regard to their age, character and prospective life. It was found that, by ordinary use of the glass door, (which did not include attempting to walk through it when it was closed), personal injury would not be caused, and that the premises were reasonably fit for human habitation[9]. The Full Court agreed[10].
[34] No successful challenge to those findings has been made on this appeal.
[35] In this Court, it was also argued that the lease contained an implied warranty that reasonable care had been taken to make and keep the premises reasonably fit and safe for the purposes for which they were to be used. This proposition was based upon common law principles concerning the liability of occupiers of premises for injuries suffered by persons entering pursuant to contract on the premises through defects or dangers existing in the premises. Cases such as Francis v Cockrell[11], Maclenan v Segar[12] and Watson v George[13] were relied upon.” (Footnotes omitted)
In Aldred v Stelcad Pty Ltd [2015] NSWCA 201, Emmett AJA stressed that the contractual allocation of liability under a lease in commercial premises may be limited where there has been no notice of a defect, particularly where there was no contractual obligation to inspector repair beyond ordinary incidents of ownership. In other words, knowledge and capacity to abate risk are pivotal when allocating responsibility.
That is not the case here. There was a repeated and sustained attempt by both the plaintiff and his employer to request the urgent attention of Viva to what had the potential of being a very serious situation. The plaintiff, in paragraph 16 of the written submissions, identifies three themes as emerging across the authorities in this area:
Contractual allocation and control (the lease matters): The lease informs who had the obligation and practical capacity to remedy the hazard. Where the lease imposes repair obligations on the owner or keeps sufficient control with the owner, and the owner is on notice of a defect, the owner’s duty is engaged (Lapcevic v Collier). Where the lease places maintenance with the occupier and the owner lacks notice, the owner’s general duty is correspondingly limited (Aldred v Stelcad Pty Ltd).
Knowledge/notice and creation of risk: Liability turns on what the defendant knew or ought reasonably to have known and whether it created or perpetuated the danger. Owner-performed, non-compliant works that generate the risk can ground owner liability notwithstanding the tenant’s occupation (Loose Fit Pty Ltd v Marshbaum [2011] NSWCA 372).
CLA s 5B/5D analysis and “dangerous defect”: Foreseeability, non-insignificance, and reasonable precautions are assessed prospectively with practical burdens in mind. Inexpensive, standard precautions (like a handrail) will often be required where the risk of serious harm is real (Loose Fit). A defect may be “dangerous” in the Jones v Bartlett sense where it presents such a foreseeable risk, especially when the landlord has notice and contractual responsibility to repair (Lapcevic).
The first defendant submits that a landlord does not owe a duty to guarantee that the premises are as safe as can be reasonably made, but where a hazard of such a serious kind has been repeatedly drawn to the landlord’s attention is self-evident.
The first defendant owed a duty as a landlord level pursuant to clauses 2.2 and Part 7 of the contract. All the evidence points to the first defendant knowing of the hazard, demands for rectification, as well as for an interim solution no later than 10 January 2018, and requests for an interim pump-out solution. In terms of foreseeability, where an obvious and serious risk had been pointed out, and where there were repeated reminders (I counted 11 from the plaintiff), the risk of harm could not have been clearer. I am comfortably satisfied from the admissions made by the first defendant’s witnesses that they disregarded and delayed the repair work because they considered the plaintiff a “pain” and considered their employer should not have to do or pay for anything, no matter how minor the cost, despite knowing that these were structural repairs that could not be carried out without the first defendant’s knowledge and permission, as well as being matters for which the first defendant was obliged to foot the bill.
The first defendant’s submissions that it took what steps it did within a sufficient timeframe must similarly fail because of the concessions made by its witnesses. The first defendant claims not to have been aware of anything prior to 10 January 2018, and even then was not aware that the issue with the ramp was structural, and was therefore a matter for the first defendant. The first defendant submits that the steps it took on 1, 8, 13 and 19 February 2018 were carried out within a reasonable timeframe and that effectively works were carried out more or less within weeks of the plaintiff’s accident, which was reasonable given the need for a proper investigation by engineers, followed by report, followed by the retaining of appropriately qualified persons to carry out the work. While Mr Walsh put to me that this was a complex engineering issue, there is no evidence (lay or expert) to this effect and, as Mr Polin SC pointed out in his submissions, the first defendant “owns thousands of petrol stations” (Tcpt 416).
The first defendant’s witnesses acknowledged that a quick repair job could have been done within days and for a very modest cost. The first plaintiff did take some steps, but these were too little and taken too late, and invariably only after the very angry emails the plaintiff kept sending. There was delay at every step on the way. For example, although clearly aware that the work was urgent when Mr Seage was retained on 6 March 2018, the first defendant’s employees failed to chase him up until 20 March 2018; on being contacted, he was able to ask the builder to quote for the work and send it that same day. This is just one of many delays upon the route towards a solution for what was clearly an urgent problem.
“33. Applying those provisions, Eureka is not liable. First, for the purposes of ss 5(B)(1)(a) and (b) the CLA, the risk of a worker suffering injury as a result of being required to wheel a half full oil boy up the ramp was unforeseeable and insignificant:
(a) The system of wheeling the half full oil boy up the ramp had been in place for a period of time without formal complaint.
(b) At T166 – 167 the plaintiff gave evidence that oil boys were regularly used by Kmart staff in the workshop as part of their system of work. There was no apparent difficulty in doing this.
(c) The plaintiff accepted that he had pulled a half full oil boy on the level surface of the workshop on many occasions.
(d) The plaintiff accepted that he had also pulled a half full oil boy up the ramp on occasions.
(e) He accepted that it required more force to pull the oil boy up the ramp that on a level surface.
(f) He accepted that the real question was exactly how much extra force that required.
(g) He was aware that his Solicitors had engaged an engineer specifically to determine the additional forces. He had seen his report and was aware that he had performed certain calculations as to the forces required to move an oil boy up the ramp.
(h) The engineer engaged by the plaintiff was Mr Dohrmann. The plaintiff chose not to rely upon his report. The only available inference open to the Court is that his report would not have assisted the plaintiff/ that is that the forces he calculated were within reasonable limits.
(i) Mr Ben Peacock was the Regional Manager for Kmart. He said at T252 that in response to the issue with the concrete ramp Kmart had considered various options in relation to moving the oil. Finally, they decided to use the oil boys filled with a certain amount of oil and wheel them up the ramp. He said that to his observation this seemed to be a suitable way of dealing with the problem, albeit that it was a bit of a nuisance. At T250.35 he said that he had seen the Kmart workers undertaking the task and did not observe them to have any difficulty. As result of this he did not consider it necessary to have a Kmart OH&S officer come and check it.”
The second defendant was an occupier, and an occupier is generally in the best position to observe and notify emerging defects. The second defendant, in occupation since about October 2003, had only to send its employees to inspect the ramp in question or to speak to the person making the enquiry from Kmart in August 2017.
The second defendant owed obligations to Kmart pursuant to the sublicense which was novated on 21 January 2015 and the duty of the landlord to enquire into a defect that has been drawn to its attention by a tenant or sublicensee. The agreement between the second defendant and first defendant set out, in clause 19, that Kmart would notify the second defendant of defects and hazards it became aware of, and the second defendant would then give notice to Viva (clause 5.6(a)). This procedure for notification of defects was not complied with by the second defendant although the right to control safety on the premises was allocated under the site license to the second defendant.
General repair and maintenance was also allocated to the second defendant (clause 5.1(a)) and this would have required the second defendant’s involvement in all aspects in relation to any repair work such as ensuring safe ingress and egress to the site by other vehicles, a long-standing problem on the site according to Mr Peacock. It would also have been the case that the second defendant could give instructions in relation to use of waste storage oil tanks, “oil bois” and the like, as this would be relevant to general repair and maintenance issues as opposed to structure and capital maintenance.
The first defendant had a duty of care to take reasonable steps to carry out structural repairs and maintenance, and I am satisfied that they had been made aware that this was an issue. The second defendant had a duty of care to comply with the terms of the contract requiring the second defendant to pass on information about defects and hazards it became aware of to the first defendant which, between this problem becoming known in March or at the latest August 2017, it did not do until January 2018, when the plaintiff commenced sending correspondence to both defendants in an attempt to resolve the problem.
Although there was a breach of duty of care in terms of failing to pass on information conformably with its obligation to be what Mr Polin SC called a “conduit”, that breach of duty was not, I find, causative of the plaintiff’s injury, because the second defendant did pass on the necessary information within sufficient time for both long-term repairs and interim solutions to be found; there was thus no causation.
Both defendants submit that if it is found that there has been a breach of a relevant duty, the plaintiff’s claim should fail on causation.
The first defendant submits that there is insufficient evidence to make a finding that the earlier schedule of works would have resulted in waste oil trucks being able to use the ramp prior to the plaintiff’s injury, this being a matter on which the plaintiff bears the s 5E onus. As is set out by Mr Del Monte in his submissions at paragraph 24, the failure to act until too late, and to find and implement an interim solution, were the causes of the plaintiff’s accident. The solution of reinforcing the ramp was in fact never taken and ought not to be regarded when considering issues of causation. Looking at the time frame set out in the chronology above, I am satisfied that if the first defendant had given proper attention to the resolution of the serious and urgent complaints made by Kmart, the supports which were able to be quickly put in place shortly after the plaintiff’s accident would have been able to be put in place well within time to prevent an accident of the kind that the plaintiff suffered. This finding is amply supported by the concessions made by the first plaintiff’s witnesses, and in particular Mr Krupakaran, who agreed that the work in question could be carried out in a few days for a very modest sum.
Both defendants submitted to me that the risk of injury (namely the risk of injury resulting from being required to wheel a heavy “oil boi” on wheels up a ramp that could be slippery) was not foreseeable, even though this was precisely the risk identified in the correspondence. This appears to be a conflation of liability and causation issues, as noted earlier. The fact is that this was the risk about which they were warned, and this was what occurred.
Although the second defendant did delay responding to Kmart, there nevertheless were replies within a sufficient time for the first defendant to carry out work to prevent the accident the plaintiff warned so vigorously would occur.
The relevant principles of law where a plaintiff, injured while performing work duties, brings proceedings against third parties, either in combination with an action against an employer or where it is asserted that such an action could live, has recently been reviewed in Synergy Scaffolding Services Pty Ltd v Alelaimat (No 2) [2024] NSWCA 11. The parties did not address me in relation to this authority or to the argument in Lapcevic v Collier about whether s 151Z would apply where the plaintiff could not have brought a work injury claim against an employer (for example, where the plaintiff was under the threshold). Mr Del Monte submitted (Tcpt 427) that the plaintiff had done all he could, but that is no answer, because the question is whether the employer had taken all necessary steps.
Where there is reliance on s 151Z by a defendant, the court is required to undertake an assessment of that employer’s liability having regard to the relative blameworthiness and causal potency of the negligence of each party, including the employer. Findings of this kind are preconditions to the apportionment exercise: Amaca Pty Ltd v State of New South Wales (2003) 77 ALJR 1509 at 1513.
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].
The first defendant submits that Kmart’s responsibility for the plaintiff’s injury was “substantial” (submissions, paragraph 152) for the following reasons:
(a) Staff training and disposal of waste oil were both an integral part of Kmart’s business. It was therefore up to Kmart to provide the plaintiff and other mechanics with the tools and equipment they required to perform the tasks. This included the development of a system of work enabling network to be carried out safely. (b) In addition, Kmart had been on notice of safety concerns raised by waste oil contractors from as early as March 2017 including a request to advise the load rating of the ramp. This was a long period of inactivity by Kmart. (c) Kmart was well-placed to devise evaluate and determine appropriate alternative methods because it was immediately position of knowing just how many trucks came to the premises how, how much they weighed and what was the best way for them to carry out their tasks if they were unable to use the ramp.
In those circumstances, Kmart ought to have devised an alternative means of disposing of waste which did not involve a significant risk of safety of its employees. The first defendant submits that the apportionment of 75% against Kmart would be appropriate.
The second defendant submits that it was Kmart who told the plaintiff what to do and how to do it, and that the second defendant had no contact with the plaintiff let alone any opportunity to train or instruct him. However, no training or instruction was necessary to know how to deal with the quite difficult situation of whether a structural change was necessary, or whether the ramp needed reinforcement, or any decision that the ramp was in fact safe and the drivers were wrong. The question of what to do required an expert to prepare a report advising structural changes over which Kmart had no control. It did not require the devising of a system of work, because no system of work could cope with the structural problems caused by the apparent instability of the ramp.
The second defendant submits that a substantial apportionment against Kmart should be made, without specifying the precise percentage.
The contemporaneous correspondence set out above amply demonstrates that Kmart was aware of the difficulties and dangers and took every reasonable step in terms of writing to both defendants requiring them to take the necessary steps in accordance with their contractual obligations. Kmart was not entitled to carry out repairs, let alone structural repairs of the kind necessary. It was not up to Kmart to put forward methods of disposing of the waste oil. It did in fact devise the solution ultimately arrived at, but this was always the responsibility of the first defendant because of the contractual terms between the parties.
No training or workplace education program was identified as being designed to assist an employee in terms of what to do if part of the premises at which he was working was unsafe for some reason. I accept however that when Kmart became aware that part of the premises was unsafe to use, it should have taken steps to ensure its workers were protected.
In the course of oral submissions, it was put to me that what Kmart should have done was to simply close the premises and not operate there at all until the problem was solved (Tcpt 424 – 425). That is not a reasonable proposal to put for any business. It would, however, have been appropriate to have an expert attend the premises to observe what was occurring and to make recommendations. I note the Kmart in fact took this course after the plaintiff’s accident.
Nevertheless, the proposed estimate of 75% is too high. The lion’s share of responsibility for the plaintiff’s accident lies with the first defendant. The adjustment under s 151Z should be 10% for Kmart.
Viva owed a duty as a landlord controller under clause 2.2 and part 7 of the lease (CB 337 – 338 and 344 – 346). There was a procedure set up under the lease whereby, once notified by the second defendant of a problem which was structural (as the ramp problem clearly was), it needed to take steps to effect the necessary structural changes to the building to incorporate a safe way of dealing with the structural weakness of the ramp area. Even if Viva had not known of the ramp problems prior to January 2018 (which, given the contents of the emails sent by the plaintiff, I do not accept), they failed to act in any responsible way over the following three months, a substantial period of time given the potential seriousness of any injury likely to involve a ramp, a large truck, and barrels of oil.
Not only did Viva know of the hazard, but it did nothing of significance in terms of solving the problem. Its solution, to restrict the use of the ramp to vehicles of below a certain weight, was wholly impractical as it amounted to a mere endorsement of the system that was obviously not working.
The second defendant owed duties under the lease, as well as being an occupier of the site and owing duties on this basis. As an occupier, the employees of the second defendant would have been able to see that drivers were refusing to use the ramp and would have learned from the emails and discussions which followed that Kmart staff were having to resort to manual handling. This was a structural defect, about which the second defendant was obliged to notify the first defendant, in accordance with its contractual obligations. In addition, the second defendant failed to suggest, or set up, an interim solution pending the works of the first defendant. Instead, Ms Yap asked Viva to suggest an interim solution (CB (Vol 1A) p. 247).
The plaintiff and his employer took every step possible to bring the situation to the attention of both defendants. Each of the defendants points to the other and says that the plaintiff and his employer were wrong to address correspondence to themselves rather than the other defendant. The plaintiff and his employer were correct to take this step, as it was a structural change with maintenance issues arising and both of them needed to contribute to the proposed solution.
While the second defendant failed in its obligations to Kmart under the lease and its obligations to the first defendant, and of their contractual obligations in relation to the notification of the structural (or potentially structural) defect, in practical terms, this failure was overtaken when the plaintiff and Kmart took this burden on themselves and notified the first defendant. Any consideration of apportionment would need to be determined by reference to whether the delay caused by the second defendant was not compliant with its obligations to notify the first defendant, and as such, made it impossible for the first defendant to carry out the works in time after learning of them at a later date such as, for example, January 2018.
It is not in dispute that the plaintiff enjoyed good health prior to the accident and was able to perform heavy duties (CB 605 – 646, 818 – 1293; Exhibit C; Tcpt 62 – 63).
The first defendant acknowledges (submissions, paragraph 158) that there is substantial agreement in the Conclave Report (Exhibit C) that the plaintiff suffered an inguinal and genitofemoral neuropathy/chronic post-hernia repair pain, which causes pain in the right groin area. Dr Endrey-Walder considered this would remain “in the long-term”. The symptoms are very painful; there is a constant burning pain with electric shock like exacerbations radiating into the right testicle and groin, and Dr Korbel has diagnosed related sexual dysfunction (CB 546 – 558).
Not only is there constant pain and a pool prognosis, but there is no curative treatment. He gave evidence of day-to-day interference with his activities including the need to pace activity, avoid lifting and coping with ongoing pain flares. This must limit his future employment prospects, as was noted in the conclave, and in particular he is not fit to return to work as a mechanic, the trade he pursued before the injury.
| | Plaintiff | | Item No | Particulars of item claimed | Amount claimed | | 1 | Non-economic Loss claimed at 31% of the most extreme case | $198,000 | | 2 | Past Out of Pocket Expenses The plaintiff has incurred and will continue to incur medical, hospital, pharmaceutical and the like expenses. These expenses have been met by Wesfarmers self-insurer, Medicare and the Plaintiff. As at 12 September 2024, Wesfarmers has paid $42,194.04 in past medical and treatment expenses. As at 16 December 2024, Medicare has paid $891.90 as per the enclosed Notice of Charge. As at 6 March 2025, outstanding Account to Workers Doctors in past expenses amounting to $329.40 | $43,415.34 | | 3 | Future out of pocket expenses Attendance on her general practitioner at the rate of $85 per attendance, once every three months: $6.54 (cost per week) x 931.6 = $6,092.66 Analgesic medication: allowance of $10 per week x 931.6 = $9,316 Ongoing review by a specialist at a cost of $250 per visit, every 6 months: $9.62 (cost per week) x 931.6 = $8,961.99. Massage therapy: $155 per attendance, once a month: $35.77 (cost per week) x 931.6 = $33,323.33 Physical therapy at a cost of $750 per year: $14.42 (cost per week) x 931.6 =$13,433.67 Chronic pain specialist at a cost of $750 per year: $14.42 (cost per week) x 931.6 = $13,433.67 | $84,561.32 | | 4 | Past Economic Loss From 31.7.2018 to date Total $114,167.41 net Plus loss of superannuation $12,558.42 Plus Fox v Wood – Allow $25,000) The plaintiff defers to the Statement of Particulars for a breakdown of the past loss. | $126,725.83 plus Fox v Wood (Estimated at $25,000.00) | | 5 | Future Economic Loss A buffer claim is made for a total loss of $50,000 for the remainder of the plaintiff's working life. Plus $7,300 for loss of future superannuation. The plaintiff defers to the Statement of Particulars for further detail as to the future loss. | $57,300 | | 6 | Future Personal and Domestic Assistance The plaintiff makes a claim on the basis of 2 hours per week for the remainder of his life expectancy at a rate of $55 per hour. $110 per week x 929.97 (5% multiplier of 41.71 years) | $102,296.70 | | 7 | TOTAL | $637,299.19 |
Plaintiff
Non-economic Loss $29,500-$52,500
22-26% of a most extreme case: section 16 of the Civil Liability Act 2002 (NSW)
Past Out of Pocket Expenses $43,380.25
Future out of pocket expenses $Nil
Past Economic Loss **$**30,000
Future Economic Loss Nil
Future d****omestic assistance Nil
TOTAL: $99130.25-$101380.25*
*Note: The buffer of $30,000 for past economic loss was added in closing submissions: (Tcpt 428).
There is agreement that the plaintiff exceeds the non-economic loss threshold. The plaintiff submits that having regard to the constancy of pain, its neuropathic character and longevity, absence of curative treatment and the restrictions placed on work and recreation, a substantial award should be made, namely 31% of the most extreme case, which would amount to $198,000.
The first defendant submits that an award of 20% of a most extreme case would be “appropriate”, without explaining why.
The plaintiff is acknowledged to have had a complete resolution of his prior groin issues and had worked without restriction until April 2018. His prior good health was described by him at Tcpt 62 – 63.
The Conclave Report describes his diagnosis, prognosis and symptoms in terms indicating a persistent neuropathic pain disorder which is both functionally and experientially severe. The constancy of pain and its neuropathic character, the restrictions imposed on work and recreation and the fact that the plaintiff will suffer from this for the rest of his life warrant an award of 31% most extreme case, which will amount to $198,000.
The plaintiff was able to carry out heavy and physically demanding work prior to his injury and had no difficulty performing heavy tasks in the course of his responsibility as a busy store manager. Prior to his injury he was earning $1,497.34 gross per week, or $1,142 net, with additional benefits which included a company vehicle and bonuses.
After his injury he underwent surgery and was unfit for any employment until 7 July 2019. He returned to work on reduced hours but had difficulty coping. His preinjury work ceased on 18 May 2020, and he became unemployed on 30 October 2020. Thereafter he has been able to perform sedentary work at O’Brien glass and more recently as a service advisor. He has two particular difficulties: the first is his temperament, because his moods are related to his pain, and the second is his inability to stand or sit for long periods of time.
The plaintiff has provided a calculation of past economic loss which includes $25,000 for Fox v Wood. He claims $114,167.41 in past economic loss and superannuation based on 11% of this sum ($12,558.42). He also claims interest on the award of past economic loss from the date of the accident.
The plaintiff was an impressive witness who described his injuries and disabilities in an unadorned fashion. He did not exaggerate and made concessions where appropriate. I am satisfied that I should award the full sum claimed for past economic loss claimed in his schedule of damages.
“Q. How many hours a week do you work at the moment?
A. At the moment, 38.
Q. What kind of work do you do at the moment physically?
A. Well, my work is a desk job. So it is - so it’s much like what you’re doing at the minute is - I sit at a desk, I answer phones, I speak to customers, I type reports on the computer. I don’t do manual mechanic work anymore.
Q. That’s work you can easily do?
A. It’s work I’ve had to retrain to do, but it’s work I can do now.” (Tcpt 127)
Evidence was given by Mr Bottemane, his employer. He says there is no career progression in the plaintiff’s job, and it appears that the plaintiff’s performance of his job tends to fluctuate depending upon his mood (Tcpt 87).
The plaintiff seeks buffer figure for future economic loss on the following bases:
(a) The plaintiff is permanently excluded from the kind of work carried out before and faces a reduced prospect of promotion to higher paying roles in his current job. (b) There is a significant difference in the earnings he can look forward to now as opposed to his preinjury trajectory. In particular, he has lost the opportunity per benefit such as bonuses and a company car. (c) The plaintiff would have difficulties on the open labour market because of the vulnerability he suffers in terms of the ongoing disabilities which include temperament problems.
There is no curative treatment for the plaintiff’s condition, and the Conclave Report does not identify any therapy likely to make any material difference to him. There would however be modest future medical needs such as general practice reviews, analgesics and pain management. A buffer of $5,000 is sought by the plaintiff. The first defendant submits that no award should be made for future out of pocket expenses, but without elaborating as to why the occasional visit to a general practitioner or purchase of analgesics should not be provided for.
I propose to award the $5,000 sought by the plaintiff.
The plaintiff’s evidence was that he was able to perform any, if not most of the household duties, including vacuuming, unloading the dishwasher and doing the laundry, but said that he cannot do these in one go and sometimes as to break it down into steps (Tcpt 90 – 91). He has never hired a cleaner (Tcpt 160). He said his girlfriend did much of the housework but that he was able to assist.
Dr Endrey-Walter did not consider the plaintiff needed assistance with domestic tasks, but he did note that the plaintiff may need assistance with home repairs and maintenance (Question 7, Conclave Report). Dr Edwards stated, without exposing his reasons, that he did not think the plaintiff needed any domestic assistance while Prof Spigelman did not express any view as he had not examined the plaintiff.
The first defendant submits that no allowance should be made “for past or future domestic assistance” (submissions, paragraph 165).
The plaintiff does not press any gratuitous claim under s 15 and has not made a claim for past domestic assistance. He does, however, bring a small claim for future assistance, namely a buffer of $5,000 in the event that he has to have occasional paid handyman or home maintenance services come to carry out home repairs or maintenance that he cannot perform.
As set out at the commencement of this judgment, after these proceedings were adjourned part-heard to enable the parties to determine the medical issues relevant to quantum and to organise a conclave, the first defendant filed a notice of motion seeking leave to amend the defence and bring a cross-claim. The orders sought are set out at the commencement of this judgment.
In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, the High Court stated at [94]:
“[94]. It will be recalled that in J L Holdings the plurality said that nothing in Sali v SPC suggested that principles of case management might be employed “except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable”. Their Honours said that case management was not to be seen as an end to itself and that the ultimate aim of the court remained the attainment of justice, even in changing times. In Gale v Superdrug Stores Plc Millett LJ expressed a similar concern, regarding the need to ensure that justice is not sacrificed. Waller LJ, delivering the judgment of the Court of Appeal in Worldwide Corporation Ltd v GPT Ltd, said that such a concern did not pay sufficient regard to the fact that the courts are concerned to do justice to all litigants. Where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants” (Footnotes omitted)
The sole explanation provided for the bringing of these proposed amendments was that new counsel had come into the matter. No explanation was offered as to why, if this were the reason, the application was made so late that it would have been necessary to be heard on 20 August 2025, with the result that the adjourned hearing time would be reduced and a further adjournment may have been required.
This is not a satisfactory explanation for the reasons explained by the High Court in Aon Risk Services Australia Ltd v Australian National University at [103]:
“[103]. The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in J L Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case.” (Footnotes omitted)
“[106]. Given the requirements of the Rule and the effects associated with delay, it was incumbent upon ANU to tender an explanation as to why the matter had been allowed to proceed to trial in its existing form. It needed to explain why it was seeking leave to amend at the time of the trial, when the two insurer's defences had identified the issue central to the claim it sought to bring against Aon more than 12 months earlier. None was given. His Honour was in error in accepting that ANU had provided a satisfactory explanation. The statements made by counsel foreshadowing leave to amend were not evidence. The ANU's solicitor's later affidavit did not support them. In addition to the defences, the letters written by Chubb in 2003 showed that ANU was told of the importance of the valuation of the property to the insurers long before the receipt of more recent documentation. ANU's solicitor did not suggest that the defences, raising the same matter in connection with the misrepresentations, were misunderstood in their potential relevance to Aon. He did not say that ANU was first alerted to Aon's possible involvement as a result of what was said in mediation.”
“[86] Of course, in some cases, the absence of an explanation (or an adequate explanation) for the delay in applying for an amendment will be significant. In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [103], the plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) observed that “[g]enerally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for” and in most cases in which delay has occurred the party responsible should explain it. In that case the absence of an adequate explanation was significant. The University had applied for an adjournment of a four-week trial on the third day of the trial in order to make substantial amendments to its statement of claim. Still, as the Full Court (Keane CJ, Gilmour and Logan JJ) observed in Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 at [51]:
“Aon Risk is not a one size fits all case. Whilst various factors are identified in the judgment as relevant to the exercise of discretion, the weight to be given to these factors, individually and in combination, and the outcome of that balancing process, may vary depending on the facts in the individual case. As the plurality in Aon Risk observed at [75], statements made in cases concerning amendment of pleadings are best understood by reference to the circumstances of those cases, even if they are stated in terms of general application.”
[87] The factors that persuaded the High Court in Aon that the applications for adjournment and amendment should not have been allowed were the timing of the application, the necessity to vacate or adjourn the trial dates, the inadequacy of the explanation, and the fact that new claims were intended to be raised which had not previously been agitated because of a deliberate tactical decision not to.”
There has been a long history of delay in these proceedings. The plaintiff’s injury occurred on 5 April 2018, more than seven years ago. The first defendant has been represented at all times by experienced solicitors and counsel and a change of representation is less than usually unpersuasive in such circumstances. Public confidence in the legal system is eroded when proceedings not only take a long time to come before the court, but also when the experienced practitioners who are engaged by equally experienced insurance companies are not ready to proceed without substantial amendments and claim to have discovered this towards the end of the trial. Mr Polin’s submissions as to the hopelessness of the cross-claim against his client were compelling, as was Mr Del Monte’s explanation as to how the proposed amendments were not related to amendments of the statement of claim. Permitting these amendments would have led to an even greater injustice, namely the need to adjourn the proceedings with the result that the plaintiff’s claim would have needed to re-commence again before another judge.
It was for these reasons that I refused the first defendant’s applications.
I make the following orders:
Judgment for the plaintiff against the first defendant.
Judgment for the second defendant against the plaintiff.
Liberty to the parties to bring in Short Minutes of Order reflecting the mathematically agreed damages to be awarded to the plaintiff as against the first defendant and the judgment in favour of the second defendant, such Short Minutes to be provided by 29 September 2025.
Costs reserved with liberty to apply, such liberty to be exercised by 1 October 2025, failing which the first defendant is to pay the costs of the plaintiff and of the second defendant.
Exhibits retained until further order.
**********
Bibby
Viva Energy Australia Pty Ltd & Anor [2025] NSWDC 377
(1958) 98 CLR 367
(2003) 77 ALJR 1509
(2009) 239 CLR 175
(1991) 22 NSWLR 389
(2005) 79 ALJR 839
(2000) 205 CLR 166
(1959) 101 CLR 298
(2000) 103 FCR 1
(2000) 200 CLR 121
(2010) 187 FCR 261
The plaintiff’s employer was particularly active. Mr Phasavath sent emails to both defendants in which he noted that ramp repair may take some time to fix and asked for what he called an “interim fix” to enable waste oil to be emptied immediately (CB 36 – 37).
Between 1 and 8 February 2018, the first defendant arranged an engineering inspection and gave instructions for this inspection to be carried out. However, no one from Viva or from Coles appears to have actually gone to the site themselves or to have given consideration to the request for an “interim fix”.
On 6 March 2018, Mr Phasavath emailed Mr Krupakaran and others seeking an update, as nothing had been heard since 1 February 2018. He was particularly anxious to pursue the request for an interim solution. The plaintiff was similarly active and emailed all the relevant participants in the email exchange that he was looking forward to an interim solution as to “options to drain the oil tank downstairs your [sic] going to put into place with immediate effect” (CB 78).
As is set out below, the emails exchanged between the first defendant’s employees, as well as the emails to the engineers sent out to carry out the inspection, were critical of the plaintiff. The engineers complained that the plaintiff was badgering them for information.
On 20 March 2018, Steven Dodds from Kmart Tyes & Auto Services (KTAS) emailed all stakeholders requesting rectification within two weeks or an interim solution to pump oil up and out from the lower level, which would be an alternative to the current situation of manual handling to get the heavy units up the ramp (CB 88). Further emails were exchanged on 21 March, 27 and 28 March 2018. Once again, nothing was done and no interim solution was the subject of consideration.
There was a further exchange of emails on 3, 4 and 5 April 2018. By that stage, however, it was too late, as the plaintiff was injured on 5 April 2018.
The second defendant submits that the first defendant had accepted it was responsible for all structural issues on the site. For this reason, repairing the ramp, and/or installing the oil pumping system, and/or any other similar repairs or modifications were matters over which the second defendant had no control in that it had no right to undertake, let alone any obligation, by reason of the site license agreement with the first defendant dated 27 November 2003 and/or its sublicense agreement with Kmart dated 21 January 2015.
The facts in this case are unusual in that there was extensive correspondence between the parties over a long period. All parties clearly took for granted a common understanding of the contractual allocation and control matters in relation to the leases (Lapcevic v Collier [2002] NSWCA 300 at [46], where the Court noted a similar pattern of “continuous requests”), knowledge of the risk and the existence of a dangerous defect. Where the lease imposes repair obligations on a party who has notice of a defect, that party’s duty is engaged. In the case of the second defendant, that duty was to receive and process the requests and to act as a conduit to the first defendant. The first defendant both owed and reached a duty of care in tort in that the terms of the lease required the owner to rectify this structural defect. That is because the landlord’s duty is one of reasonable care shaped not only by the contractual allegation of obligations, but also what amounts to reasonable care in the circumstances of the case.
Both defendants submitted that the system of wheeling the “oil bois” up the ramp had been in place for some time without complaint, and that the risk of it happening was not foreseen by Mr Peacock. The evidence shows there was plenty of complaint, especially from the plaintiff as soon as he started work at Kmart, and that the risk the plaintiff identified was the one that occurred.
It would have been immediately apparent to the first defendant that any situation where men wheeling loads of flammable material such as oil because truck drivers not only could not - but also, would not - use the ramp was a problem of the most urgent kind. The seriousness of the problem and the urgency were repeatedly and vigorously draw to the first defendant’s attention by both the plaintiff and Kmart from early January 2018. This was moreover a site well known to the first defendant, over many years, and was a site that could be readily inspected as soon as they were made aware of the problem.
I am comfortably satisfied that when the repairs were carried out to the ramp in March 2017, there would have been, and was, awareness of the problem, and that this is why the plaintiff referred to the problem as being ongoing since March 2017. Even if that were not the case, and the first defendant only became aware of the problem in January 2018, urgent steps should have been taken immediately not only to ascertain the safety of the ramp but also to propose an interim solution while works that were self-evidently needed to the ramp were being carried out.
Particulars 10.1 – 10.3 of the statement of claim have been made out. The first defendant failed to immediately arrange for the ramp to be secured and supported such that vehicles weighing more than 3 tonne could traverse the ramp, failed to arrange for an alternate access or interim solution; and failed to communicate realistic timeframes within which the ramp could be repaired and secured, so that alternative measures could be taken for the oil bins to be safely conveyed across the ramp;.
Particular 10.6, namely that the first defendant failed to devise an interim solution, is also made out.
As to particulars 10.4 and 10.5, there was no evidence given as to the desirability or otherwise of giving a rent holiday or providing for the plaintiff’s employer to move out of the premises.
The parties have not served any expert reports as to what solution was the best, how long it would take and whether it could have been completed within a reasonable time following the notifications clearly sent to both parties in January 2018. I can, however, take into account the speed and relative lack of expense of performing the work-around solution which resolved the issue, and which was carried out relatively quickly after the plaintiff’s accident.
Taking all of the above into account, I am of the view that there is no causative link between any oversight or failure to act by the second defendant in terms of liability for the plaintiff’s accident. There was plenty of time between January 10 and April 5, 2018 for consideration not only of the weight the ramps could take (which I am satisfied was not an appropriate solution in any event, and one which was both financially and structurally inferior to the ultimate solution chosen), but for an interim fix to be devised, which was effectively what occurred after the plaintiff’s accident.
Accordingly, I am of the view that there should be no apportionment between the first and second defendants as the first defendant is wholly liable to the plaintiff for its negligent failure to act on the 11 requests for assistance they receive from the plaintiff and Kmart requiring urgent action to be taken.
This will accordingly result in a finding for the second defendant on the issue of liability, and for costs to be reserved so that a Kirby or Sanderson order can be considered.