Herning v GWS Machinery Pty Ltd & Anor [2005] NSWCA 263

New South Wales Court of Appeal

CITATION: Herning v GWS Machinery Pty Ltd & Anor [2005] NSWCA 263

HEARING DATE(S): 03/05/05

JUDGMENT DATE: 15 August 2005

JUDGMENT OF: Handley JA at 1; Beazley JA at 2; Basten JA at 7

DECISION: (1) Allow the appeal in part and set aside the judgment of District Court of 10 March 2004; (2) In place of the judgment of the District Court, order - (a) judgment be entered for the plaintiff against the first defendant for 75% of his damages to be assessed; (b) judgment be entered for the second defendant against the plaintiff; (c) the plaintiff to pay the costs of the second defendant; (d) the first defendant to pay the costs of the plaintiff including costs payable by him to the second defendant from 15 December 2003; (3) Remit the matter to the District Court for the assessment of damages; (4) Order that the Appellant pay the costs of the Second Respondent in this Court; (5) Order that the First Respondent pay the Appellant's costs of the appeal

CATCHWORDS: Negligence - failure to provide a safe system of work - failure to warn employee of risks of transporting heavy farm machinery - failure to instruct employee on course of action if load shifted during transport - contributory negligence

LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1965 (NSW)

Thompson v Woolworths (Q,land) Pty Limited [2005] HCA 19 Harrison v Lau Nay Nominees Pty Ltd [2004] NSWCA 18 Bankstown Foundry Pty Ltd v Braistina (1985-86) 160 CLR 301 Joslyn v Berryman (2003) 214 CLR 552 CASES CITED: Czatyrko v Edith Cowan University [2005] HCA 14 Waugh v Kipper (1986) 160 CLR 156 Gould v Vaggelas (1983-85) 157 CLR 215 Sanderson v Blyth Theatre Co [1903] 2 KB 533