PASMINCO METALS-SULPHIDE PTY LTD v BRAMBLES AUST LTD [1998] NSWCA 169

PASMINCO METALS-SULPHIDE PTY LTD v BRAMBLES AUST LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SPIGELMAN CJ, MASON P, POWELL JA 25 August 1998 [1998] NSWCA 169

CONTRACTS — construction and interpretation — contractual obligation to procure insurance — meaning of "subcontractor".

Spigelman CJ. Ex tempore I will ask Mason P to deliver the first judgment.

Mason P. Proceedings were commenced in the Common Law Division by the second respondent (Mr Murray) against the first respondent (Brambles) as first defendant and the second respondent (Sulphide) as second defendant. Mr Murray claimed damages for personal injuries suffered at factory premises at Cockle Creek.

It was alleged in the Statement of Claim that Sulphide was the occupier of the factory and that Brambles was in control of and had responsibility for the performance of sand-blasting work on the premises and/or was the occupier with responsibility for that part of the factory premises where the sand-blasting work was being carried out. Each defendant was sued in negligence as well as upon statutory counts.

Mr Murray did not plead that he was employed by either corporation. His evidence was that his employer was Allman Industrial Services Pty Ltd, and it was that employer who instructed him to go to the factory. After commencing work Mr Murray was injured when he struck his head on a beam obstructing a walkway on some scaffolding.

Each defendant filed a Defence. Ultimately, on 8 February 1995, Mr Murray settled his claim against Brambles for $195,000. His claim against Sulphide was discontinued.

These facts present the background to the appeal, which is concerned with a contractual dispute between Brambles and Sulphide which was litigated pursuant to the Second Cross Claim filed in Mr Murray's proceedings. Sulphide had contracted with Brambles for Brambles to carry out construction work at the factory. The Agreement is a lump sum contract dated 2 December 1988. Sulphide, by its earlier name, is referred to as "The Company" and Brambles, by its earlier name, is referred to as "The Contractor". For a consideration of about $4 million Brambles agreed to prepare for painting all steel work, apply heavy duty coatings to protect the steel work from further corrosion, inspect, test, maintain these coatings and clean up the site on completion of work, as indicated by the Specification. Details of Brambles' obligations were set out in the 47 page Agreement (containing its Specification or special conditions) and 5 Appendices. These included App 1, General Conditions of Contract for Construction Contracts. Condition 3 of these General Conditions stipulated: