Besselink Bros Pty Limited v Citra Constructions Pty Limited [1984] FCA 498

JUDGMENT No. 4], b bt

coucscesosecoesncel, SOecoceeceee IN THE FEDERAL COURT OF AUSTRALIA )

AUSTRALIAN CAPITAL TERRITORY

No. ACTG39 of 1984 DISTRICT REGISTRY

GENERAL DIVISION

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: BESSELINK BROS. PTY. LIMITED

Appellant (Cross Respondent)

AND: CITRA CONSTRUCTIONS PTY. LIMITED

Respondent (Cross' Appellant)

Coram: Smithers, Northrop and Gallop JJ.

REASONS FOR DECISION

THE COURT 31 October 1984

In this case judgment was entered by the learned judge for $206,093.10 damages and costs in favour of the plaintiff against the appellant and respondent who were

defendants in the action.

The plaintiff was an employee of the appellant and was injured in the course of his employment with the appellant in the carrying out of painting works being carried out by the appellant as sub-contractor of the respondent as builder. The injuries arose out of defects in scaffolding erected by the respondent and being used by the

appellant's employees.

(b)

(c)

Such insurance an $500,000.

gathered from the presence of the words "to the satisfaction

according to its natural meaning no such condition precedent

is to be found.

He argued also that clause 9 should be construed strictly against the builder on the ground that it was, certainly in substance, a clause excluding liability in the builder otherwise existing either to persons or the

appellant itself. He relied on the principles discussed by

Windeyer J. in Thomas National Transport v. May and Baker

(1966) 115 CLR 353 at 376 concerning construction of

contracts described as exemption, exclusion or protective

clauses,

In our opinion clause 9 is not such a clause. On the contrary it is a clause casting positive obligations on the appellant to provide insurance cover against those liabilities in the builder which exist or may exist by