A multi-year legal saga, that erupted when a Kmart Tyre and Auto manager suffered a serious injury at a suburban petrol station, has ended with a massive win for fuel giant Viva Energy.

ASX-listed energy giant Viva Energy has booked a major Court of Appeal victory in a years-long legal saga over allegations of negligence.

The battle erupted in 2018 when Simon Bibby, a Kmart Tyre and Auto workshop manager at a petrol station complex in St Ives, NSW, suffered a serious injury shifting a container of waste oil. The dispute centred on a concrete ramp between the lower and upper levels of the complex, which was owned by Viva.

Disposal trucks refused to use the ramp to collect waste oil and Mr Bibby had sent emails to employees at Kmart Tyre and Coles Express, which operated the convenience store, warning of serious health hazards.

“Hey guys is there any news on this problem at all yet, it’s starting to become more than frustrating,” he wrote.

“This is a complete health hazard at the moment so someone needs to pull there [sic] 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.”

He sent the email on January 16, 2018, court documents show, and it was forwarded to Viva on January 22.

On the afternoon of April 5, Mr Bibby was injured while manually moving a container up the ramp.

He suffered pain to his groin and was later diagnosed with an inguinal hernia, which can cause debilitating pain.

He sued Viva and Coles Express, alleging negligence, and a complex corporate blame game erupted over who was responsible for the unsafe working conditions.

Viva licensed the site to Coles Express, and Coles Express in turn sublicensed out the site’s workshop space to Kmart Tyre.

In September last year, the NSW District Court ruled Viva was legally responsible for Mr Bibby’s injury.

But last week, the Court of Appeal overturned that ruling, finding Viva was not liable.

First, the court found that while Viva had a legal obligation to undertake repairs at the complex, there was no evidence that it had delayed repairing the ramp.

The company became aware of a problem with the ramp in late January and ordered an engineer to inspect it in February.

The engineer concluded the ramp required structural remedial work.

“It was unrealistic to suppose that that work could have been completed before Mr Bibby was injured,” the court stated.

Second, the court disputed the link between the defects in the ramp and Mr Bibby’s injury.

“There was no real connection between the defects in the ramp, let alone Viva’s breach of duty, and Mr Bibby’s injury,” the court ruled.

“The most that could be said is that the defects in the ramp prompted the drivers of the waste oil trucks to adopt a position that they ought to have adopted in any event, which in turn prompted Kmart Tyre to adopt an unsafe method of disposing of the waste oil.”

Finally, the court ruled it was not Viva’s responsibility to implement a solution to the disposal of waste oil.

“It was for Kmart Tyre to implement a safe system of work for its employees given the inherent restrictions imposed by the premises,” the court said.

“The fact that Viva ultimately agreed to pay the costs of implementing the solution that was adopted does not alter the position.”

Mr Bibby is now on the hook to cover the legal costs of both Viva and Coles Express.

Viva has acquired Coles Express in a $300m deal in 2023, taking ownership of more than 700 convenience stores.

Kmart Tyre and Auto, meanwhile, was rebranded to mycar in 2019 after Wesfarmers sold it to German giant Continental AG.

Extracted in full from:  https://www.couriermail.com.au/business/economy/australian-economy/asxlisted-energy-giant-viva-energy-wins-appeal-in-simon-bibby-negligence-case/news-story/374080f70e628b7cf0062958c0fb8d3a

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