Herning v GWS Machinery Pty Ltd - [2005] NSWCA 263

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)

CASES CITED:
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
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

PARTIES:
Scott Herning (Appellant)
GWS Machinery Pty Ltd (First Respondent)
Jarrett Implements Pty Ltd (Second Respondent)

FILE NUMBER(S):
CA 40237/04

COUNSEL:
S. Norton SC/M. Fraser (Appellant)
L. King SC/S. Bliim (Respondent)

SOLICITORS:
Brydens Law Office (Appellant)
Moray & Agnew (First Respondent)
Abbott Tout (Second Respondent)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 13468/01

LOWER COURT JUDICIAL OFFICER:
Bishop DCJ

CA 40237/04
DC 13468/01

HANDLEY JA
BEAZLEY JA
BASTEN JA
15 August 2005

SCOTT HERNING v GWS MACHINERY PTY LTD & ANOR

This is an appeal from a decision of the District Court which held that neither GWS Machinery Pty Ltd (“the Employer”), nor Jarrett Implements Pty Ltd (“the Supplier”) were liable in negligence for damage suffered by Mr Herning (“the Appellant”).

The Appellant was a sales representative employed by the Employer. Part of the duties of the Appellant was to pick up and deliver heavy farm machinery. Late in the afternoon on the day in question, the Employer requested the Appellant to pick up a 200kg agricultural mower (the slasher) from the premises of the Supplier.

An employee of the Supplier used a small crane to lift the slasher onto the back of the Appellant’s truck, whereupon the Appellant used a strap to fasten the slasher to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWCA 263
Decision Date: 15 August 2005

CaseChat Overview and Summary

Herning (the plaintiff) brought proceedings in the District Court of New South Wales against GWS Machinery Pty Ltd (the first defendant) and another party (the second defendant) alleging negligence. The dispute concerned injuries sustained by Herning while transporting heavy farm machinery, which he claimed was due to the defendants' failure to provide a safe system of work, warn him of risks, and instruct him on how to respond to a shifting load. The appeal was heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether the first defendant was negligent in its duty of care to the plaintiff, and if so, to what extent. It also had to consider whether the plaintiff was contributorily negligent. The court needed to assess the adequacy of the safety measures and instructions provided by the first defendant in relation to the transport of the heavy machinery.

The Court of Appeal found that the first defendant had breached its duty of care to the plaintiff by failing to provide a safe system of work and adequate instructions regarding the transport of the heavy machinery. However, it also determined that the plaintiff had been contributorily negligent. Applying these findings, the court allowed the appeal in part, setting aside the District Court's judgment.

In lieu of the District Court's judgment, the Court of Appeal ordered that judgment be entered for the plaintiff against the first defendant for 75% of his assessed damages. Judgment was entered for the second defendant against the plaintiff, with the plaintiff to pay the second defendant's costs. The first defendant was ordered to pay the plaintiff's costs, including the costs the plaintiff was liable to pay the second defendant from a specified date. The matter was remitted to the District Court for the assessment of damages. The costs of the appeal were also allocated, with the appellant (Herning) to pay the second respondent's costs and the first respondent (GWS Machinery) to pay the appellant's costs of the appeal.

Orders

Orders of the court

(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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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)
CASES CITED:	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 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
PARTIES:	Scott Herning (Appellant) GWS Machinery Pty Ltd (First Respondent) Jarrett Implements Pty Ltd (Second Respondent)
FILE NUMBER(S):	CA 40237/04
COUNSEL:	S. Norton SC/M. Fraser (Appellant) L. King SC/S. Bliim (Respondent)
SOLICITORS:	Brydens Law Office (Appellant) Moray & Agnew (First Respondent) Abbott Tout (Second Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 13468/01
LOWER COURT JUDICIAL OFFICER:	Bishop DCJ