High Court of Australia
High Court of Australia Gibbs C.J. Mason, Murphy, Aickin and Brennan JJ. Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45
ORDER Appeal dismissed with costs.
Cur. adv. vult.
The following written judgments were delivered:—
Sept. 1 Gibbs C.J., Mason and Aickin JJ.
The appellant, Port of Melbourne Authority ("the Authority"), hired a crane to the respondent, Anshun Pty. Ltd. ("Anshun"). While the crane was in use by Anshun on 21 December 1973 at Appleton Dock, Melbourne, for the purpose of handling cargo and other materials for the ship Mount Keira, a load of steel girders handled by the crane struck one Soterales and severely injured him. Soterales sued the Authority and Anshun for damages for personal injury for negligence. Soterales alleged that he was injured as a result of Anshun exposing him to unnecessary risk and/or as a result of the negligence of the servants or agents of Anshun. Further and in the alternative, Soterales alleged that he was injured as a direct result of the negligence or breach of statutory duty of the Authority, its servants or agents.
The Authority and Anshun claimed contribution from each other pursuant to s. 24 of the Wrongs Act 1958 Vict., each defendant serving on the other a notice claiming contribution under O. 16A, r. 16 of the Victorian Supreme Court Rules. The notice served by the Authority claimed contribution, but not an indemnity, notwithstanding the existence of an indemnity given by Anshun in an agreement dated 31 January 1968 between the Authority and Anshun which governed the hiring of the crane.
The indemnity was contained in cl. 3 (b) of the agreement. It was expressed in these terms:
The hirer shall indemnify and at all times keep indemnified the Commissioners their servants and agents against all actions, proceedings and claims whatsoever brought against the Commissioners or their servants or their agents in relation to any injury or loss of life whatsoever arising directly or indirectly out of or in any way attributable or incidental to the use of the plant during the period of the hire
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