An employer subcontractor on a construction site cannot discharge its non-delegable duty of care to its employees merely by participating in a site safety committee; upon becoming aware of a hazard, it must take independent steps to protect its workers. The court was divided on whether a contractual indemnity requiring indemnification for liability 'arising out of the performance of the Subcontract Works' extends to the head contractor's liability for its own independent breach of duty of care. The majority (Giles JA and McClellan CJ at CL) held it does not; Basten JA held it does. The question of the correct approach to construction of indemnity clauses in construction subcontracts — particularly the relationship between Darlington Futures, Andar Transport, and the contra proferentem rule — remains unsettled.
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