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

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

The employer breached its duty of care by failing to warn and instruct the appellant regarding the risks of moving heavy machinery when a load shifted, which was a reasonably foreseeable risk. No breach by the supplier was established. Damages should be reduced by 25% for contributory negligence, as the appellant ought reasonably to have foreseen the risk involved in attempting to reposition the load without assistance.

Jurisdiction
Australia
Judgment Date
15 August 2005
Procedural Posture
Appeal / Decision on Appeal From District Court
Outcome
Appeal allowed in part; judgment of District Court set aside; judgment entered for the appellant against the employer for 75% of assessed damages; supplier not liable; damages to be assessed; specific costs orders made
Legal Topics
['duty of Care' 'safe System of Work' "employer's Duty" 'foreseeability' 'contributory Negligence' 'costs']
['negligence'] ['duty of Care' 'safe System of Work' "employer's Duty" 'foreseeability' 'contributory Negligence' 'costs']

Case Brief

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Procedural Posture

Appeal / Decision on Appeal From District Court

Legal Issues

  1. 1 ['Whether the employer breached its duty of care by failing to provide a safe system of work and adequate instructions or warnings' 'Whether the supplier owed and breached a duty of care to the appellant' 'Whether damages should be reduced for contributory negligence']

Ratio Decidendi

The employer breached its duty of care by failing to warn and instruct the appellant regarding the risks of moving heavy machinery when a load shifted, which was a reasonably foreseeable risk. No breach by the supplier was established. Damages should be reduced by 25% for contributory negligence, as the appellant ought reasonably to have foreseen the risk involved in attempting to reposition the load without assistance.

Court Disposition

Appeal allowed in part; judgment of District Court set aside; judgment entered for the appellant against the employer for 75% of assessed damages; supplier not liable; damages to be assessed; specific costs orders made

Orders

  • ['Appeal allowed in part and judgment of District Court of 10 March 2004 set aside' 'Judgment entered for the appellant against the first respondent for 75% of damages to be assessed' 'Judgment entered for the second respondent against the appellant' 'Plaintiff to pay the costs of the second respondent' 'First...