6 B&B did not suggest that the present clause could usefully be compared with the contract considered in Canberra Formwork, but commended the approach adopted by Blackburn CJ to the Court. However, the solution to the dispute between Leighton and B&B must be found in the language of.the present clause.
7 First, the present clause is not directed to the cause of Leighton's "loss or damage", i.e., its liability to Smith, but to the cause of Smith's personal injury. It is irrelevant to the operation of the clause that B&B's "act, error or omission or neglect" was not the cause of Leighton's liability. It was a cause of Smith's personal injury.
8 Second, no implied limitation on Leighton's right to an indemnity can readily be identified. One suggestion made by B&B was that the word "solely" might be inserted after the words "personal injury", but there is no reason to suppose that it was not intended that Leighton should have an indemnity from B&B if both B&B and some third party caused a personal injury which resulted in loss or damage to Leighton.
9 Third, as Meagher JA has pointed out, the modern approach to the construction of commercial contracts is to. give them their natural and ordinary meaning. [6] If applied to the present clause, the approach adopted in Canberra Formwork [7] would require that the ordinary and natural meaning of the words chosen by the parties be put to one side on the footing that the Court considers that they cannot have intended to mean what they said, although what they said is neither ambiguous nor absurd. That is not the Court's legitimate function.
10 Accordingly, we agree with Meagher JA that Leighton's appeal against the dismissal of its claim against B&B for an indemnity should be allowed with costs and a declaration made that Leighton is entitled to be indemnified by B&B in respect of Leighton's liability to Smith.
11 Conformably with the parties' submissions, Leighton's appeal against the damages awarded to Smith should be dismissed, as should its application for leave to appeal. Smith's application to strike out Leighton's appeal and his application for leave to appeal against the damages awarded him against B&B should also be dismissed.
12 We note what Meagher JA has written about Leonard v Smith (1992) 27 NSWLR 5. Leonard has been followed and applied by this Court implicitly in Grliak v Trivan (1994) 35 NSWLR 82 and explicitly in Grliak v Trivan (No 2), Court of Appeal unreported, 19 April 1996 and Hampic Ptv Ltd v Adams [1999] NSWCA 455. No submissions were advanced as to the correctness of Leonard, not was leave sought to reconsider the earlier Court of Appeal decisions. In recording this, we are not suggesting any view as to the likely outcome of such application had it been made.
13 The parties should have fourteen days within which to make submissions in writing in relation to costs.
14 MEAGHER JA: The plaintiff, Mr R J Smith, ("Smith") an employee of the appellant Leighton Contractors Pty Limited ("Leighton") was, on, 27 August 1992, working for B&B Detailed Joinery Manufacturers Pty Limited ("B&B"), one of Leighton's subcontractors securing roof trusses which were in the course of being erected on a building in the course of construction. B&B is the second respondent in the appeal.
15 Suddenly and without warning the trusses collapsed and Smith fell heavily onto a concrete floor, which was approximately 2.9 metres (9 feet) below him. He sustained serious injuries. They included:
a) severe head injury
b) fractured skull
c) contusions of the right frontal lobe
d) Injury producing a post traumatic infarct in the region of the right anterior frontal lobe;