Gherm v Pesl [2005] NSWSC 577

New South Wales Supreme Court

CITATION : Gherm v Pesl [2005] NSWSC 577

HEARING DATE(S) : 24/5/05, 25/5/05, 26/5/05

JUDGMENT DATE : 16 December 2005

JUDGMENT OF : Bell J at 1

DECISION : Verdict and judgment for the second and third cross-defendants; The cross-claimant is to pay the second and third cross defendants' costs.

Trade Practices Act 1974 (Cth) LEGISLATION CITED : Workers Compensation Act 1987

Bryan v Maloney (1994-1995) 182 CLR 609 Chappel v Hart [1998] HCA 55: 195 CLR 232 Clarke v Army and Navy Co-operative Society Ltd [1903] 1 KB 155 CASES CITED : Cole v South Tweed Heads Rugby Club [2004] HCA 29; 217 CLR 469 Grant v Australian Knitting Mills Ltd [1936] AC 85 Rivtow Marine Ltd v Washington Ironworks (1973) 40 DLR (3d) 530

Ivan Gherm (Plaintiff) J & V Pesl Pty Limited (Defendant/Cross Claimant) PARTIES : Ray Smith Tractors Pty Limited (Second Cross Defendant) Ray Smith (Jnr) Pty Limited (Third Cross Defendant)

FILE NUMBER(S) : SC 20269/00

S D Rares SC / L J Ellison (Cross Claimant) COUNSEL : P G Mahony SC / G Young (2nd and 3rd Cross Defendants)

Rankin Nathan Lawyers (Cross Claimant) SOLICITORS : Thorntons Lawyers (2nd and 3rd Cross Defendants)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BELL J

Friday 16 December 2005

20269/00 Gherm v J & V Pesl Pty Limited

JUDGMENT 1 BELL J: On 25 March 1998 the plaintiff, Ivan Gherm, suffered injury in the course of his employment as a mechanic with J & V Pesl Pty Limited (Pesl). He was servicing a heavy industrial rotary grass slasher that was suspended at an angle of 45° from the ground when it fell on him. A lifting bracket attached to the gearbox housing was taking the weight of the slasher. Mr Gherm commenced proceedings against Pesl claiming damages for his injuries. Pesl brought a cross-claim against Howard Australia Pty Limited (Howard), the first cross-defendant, Ray Smith Tractors Pty Limited, the second cross-defendant and Ray Smith (JNR) Pty Limited, the third cross-defendant (I will refer to the second and third cross-defendants collectively as the Smith companies). The cross-claim was brought against Howard as the manufacturer of the slasher and against the Smith companies on the basis that one or other was the supplier. 2 The principal proceedings between Mr Gherm and Pesl have been settled. A consent judgment was entered in favour of Mr Gherm in the sum of $950,000 clear of payments under the Workers Compensation Act 1987 (NSW). The workers' compensation payments were $115,725. Total liability was in the amount of $1,065,725. 3 At the time the cross-claim was brought those advising Pesl believed that Howard was the manufacturer of the slasher. It was later learned that the manufacturer was Howard Rotavator Pty Ltd (Howard Rotavator) and that Howard had been incorporated in June 1985 to acquire the assets of Howard Rotavator in receivership. Proceedings against Howard have been settled. This judgment deals with the cross-claim against the Smith companies.