Herning v GWS Machinery Pty Ltd

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.