Ann Wright: A step in the wrong direction

Case: Thomas Henry Jose and MacSalvors Plant Hire Ltd v Brush Transformers Ltd.

Court of Appeal 15 December 2009

Mr Jose, a competent and experienced crane driver, worked for plant hire company MacSalvors, which owned a Grove GMK 4075 80-tonne capacity crane. This was hired to Brush for work on a site at Newton Abbot, Devon, and Mr Jose was supplied as part of the hire package.

On 10 July 2002, his first day on site, Mr Jose climbed on to the tool box at the rear of the crane’s cab to check the hoist rope, adjust the mirror and clean the top of the box. When finished he stepped backwards off the toolbox, believing he had left the crane slewed in line with the chassis and that the deck would be below him. He was wrong and stepping back into space, he fell to the ground and injured himself.

As employers are responsible for the actions of their employees, Mr Jose claimed against MacSalvors for damages for his personal injuries and losses caused by MacSalvors’ negligence and/or its breach of statutory duty. A compromise deal was reached whereby Mr Jose accepted 25% contributory negligence for the accident with MacSalvors paying him £50,000.

Normally that would have been the end of the matter. However, MacSalvors’ hire agreement with Brush was based on the Contractor’s Plant Association (CPA) Model Conditions of Hire, which contained two important clauses.

In clause 8, MacSalvors said the driver would be competent and that “such drivers... shall for all purposes in connection with their employment be regarded as servants or agents of the Hirer...”. The hirer was also responsible for all claims arising in connection with operation of the plant by the driver.

Clause 13, meanwhile, required the hirer to indemnify the plant owner for all claims arising from the operation of the plant. This applied whether under statute or at common law. As a result, MacSalvors claimed the £50,000 from Brush Transformers.

In the first case, held on
4 July 4, 2008, Judge Bromilow dismissed MacSalvors’ claim. His reasoning was that MacSalvors had been in breach of Regulation 6 (1) of the Construction (Health, Safety and Welfare) Regulations 1996 – which says that the employer has to take suitable and sufficient steps to prevent, so far as reasonably practicable, any person falling – and was therefore entirely liable to Mr Jose. He thought clause 8 of the hire agreement was meant for consequential loss and damage.

Clause 13 did not help MacSalvors because it had not expressly exempted itself from its own negligence or a breach of its statutory duty.

The Court of Appeal therefore upheld Judge Bromilow’s decision and dismissed the appeal.

Analysis

An employer is liable for the actions of their employees. However, when a piece of plant, such as a crane, is hired complete with driver, the hirer is in day-to-day control, not the plant owner.

The CPA Model Conditions of Hire make the hirer responsible for any damage that results from the use or mis-use of the piece of plant.

There are, however, limits to this transfer of responsibility under the CPA clauses. Courts have held that the driver/operator must be competent and that unless it is specifically excluded, the plant owner must be responsible for their own negligence. This has been demonstrated with the Court of Appeal’s decision in E Scott (Plant Hire) Ltd v British Waterways Board (1982).

The court therefore rejected MacSalvors’ argument that clause 8 referred to the hirer being responsible for all purposes for all claims.

This case shows that the plant owner is responsible for its breach of statutory duty in not complying with section 6(1) of the Construction (Health, Safety and Welfare) Regulations 1996, which were in force at the time of the incident.