ARTICLE · 09 MARCH 2010

Indemnity clauses and hire agreements – when wide enough is not good enough

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Westina Corporation Pty Ltd (Westina) was a haulage contractor trading under the name "Jamieson Transport". In 2005 it hired a road train comprising a prime mover and three trailers to BGC Contracting (BGC) pursuant to the terms of a written "wet hire" agreement. The wet hire agreement obliged Westina to provide the services of a qualified operator for the road train.

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Westina Corporation Pty Ltd (Westina) was a haulage contractor trading under the name "Jamieson Transport". In 2005 it hired a road train comprising a prime mover and three trailers to BGC Contracting (BGC) pursuant to the terms of a written "wet hire" agreement. The wet hire agreement obliged Westina to provide the services of a qualified operator for the road train.

The hire agreement contained the following terms:

a warranty by Westina that the hired equipment was "in sound mechanical condition" and an agreement to "defend, indemnify and hold BGC harmless against any injury, death, claim or other such loss arising out of the use of the plant by BGC except to the extent caused by BGC's willful (sic) misconduct".

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