British Crane Hire Corporation Ltd v Ipswich Plant Hire Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE MEGAW,SIR ERIC SACHS |
| Judgment Date | 13 November 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J1113-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 November 1973 |
[1973] EWCA Civ J1113-1
The Master of the Rolls (Lord Denning),
Lord Justice Megaw and
Sir Eric Sachs
In The Supreme Court of Judicature
Court of Appeal
Civil Division
On appeal from Judgment of Deputy Judge Kenneth Jones.
Mr ANTHONY McCOWAN, Q. C., Mr RODGER BELL and Mr P. I. F. VALLANCE (instructed by Messrs Stephenson, Harwood & Tatham) appeared on behalf of the Appellants (Defendants).
Mr R. F. NELSON (instructed by Messrs Young, Jones, Golding Patterson, Agents, for Messrs D. Wood & Co., Birmingham) appeared on behalf of the Respondents (Plaintiffs).
In June, 1970, a big earth-moving machine got stuck in the mud. It sank so far as to be out of sight a It cost much money to get it out. Who is to pay the cost?
The Defendants, Ipswich Plant Hire Limited, were doing drainage and other engineering works in the marshy land next the River Stour, near Cattawade Bridge in Essex. They are themselves in the hiring business, letting out cranes and so forth. But on this occasion they were doing the work themselves. They needed a dragline crane urgently. They got in touch with the Plaintiffs, the British Crane Hire Corporation Limited, and asked if they could hire a dragline crane. The Plaintiffs responded quickly. They delivered it on Sunday, 28th June, 1970. They let it on hire to the Defendants, together with the driver, Mr Homphrey. No doubt the driver remained the servant of the Plaintiffs when he was driving the crane. The Plaintiffs took it as far as they could by road. Then it was unloaded.
On the next day, Monday, 29th June, 1970, the manager of the Defendants, a Mr Meadows, directed the driver the way to go across the marsh. When they got to a particularly bad patch, Mr Meadows warned the driver that he ought to have "navimats", that is, sets of timber baulks which could be laid on the marsh and form a kind of roadway for the machine. The Defendants ought to have supplied the "navimats", but they had not yet arrived. Mr Meadows told the driver to wait for the "navimats". But the driver did not wait. He took his chance. He went on without "navimats". He got over that patch safely. Further on, there was another bad patch ofmarsh. The driver took his chance again. This time he fared worse. The dragline crane sank into the marsh. That was the "first mishap". They got it out after a good deal of work. There was no doubt that it was the fault of the driver, Mr Homphrey, in not waiting for the "navimats". His negligence was the cause of that first mishap. His employers, the Plaintiffs, must bear the cost of it.
On the next day, Tuesday, 30th June, 1970, the "navimats" arrived. But there was a second mishap. On that day the dragline crane had to cross another bad patch. The driver, Mr Homphrey, was this time using the "navimats". He had to make a turning movement or "spragging". He had just completed it when, in spite of the "navimats", this machine sank into the marsh. It went out of sight. Great efforts were needed to get it out. Heavy equipment was brought in. Eventually, at great expense, the machine was got out.
The question arises on the second mishap. Who is to bear the expense of recovering the machine from the marsh? The Judge found that the sinking in the marsh was not the fault of the driver Homphrey, but the fault of Mr Meadows, the Site Agent of the Defendants. The Judge thought that Mr Meadows ought to have directed the crane by a safer route across the marshy ground. On that account he held the Defendants liable for the expense. That finding was challenged before us by Mr McCowan for the Defendants. He pointed out that the driver and the Site Agent had gone together over the ground and decided on this route. I was impressed by Mr McCowan's submissions on this point. I doubt whether it would be right to hold the Site Agent guilty of negligence.It seems to mo that this second mishap may have been a piece of bad luck which occurred without the fault of anyone. It was a hazard due to the nature of the marsh itself at that point.
But it does not follow that the Plaintiffs fail on their claim. Even though the Defendants were not negligent, nevertheless the Plaintiffs say that the Defendants are liable in contract for the costs of recovering the machine from the marsh. The Plaintiffs say that the contract incorporated the conditions on a printed form under which the Defendants are liable for the costs.
The Judge found that the printed conditions wore incorporated into the contract. The Plaintiffs appeal from that finding. The facts are these: The arrangements for the hire of the crane were all on the telephone. The Plaintiffs agreed to let the Defendants this crane. It was to be delivered on the Sunday. The hiring charges and transport charges were agreed. Nothing was said about conditions. There was nothing in writing. But soon after the crane was delivered, the Plaintiffs, in accordance with their practice, sent forward a printed form to be signed by the hirer. It set out the order, the work to be done, and the hiring fee, and that it was subject to the conditions set out on the back of the form. The Defendants would ordinarily have sent the form back signed: but this time they did not do so. The accident happened before they signed it. So they never did so. But the Plaintiffs say that nevertheless, from the previous course of dealing, the conditions on the form govern the relationship between the parties. They rely on No. 6:-
"Site Conditions: The Hirer shall take all reasonable precautions to ensure that the crane can safely be taken onto and kept upon or at the site and in particular to ensure that the ground is in a satisfactory condition to take the weight of the crane and or its load. The Hirer shall where necessary supply and lay timber or other suitable material for the crane to travel over and work upon and shall be responsible for the recovery of the crane from soft ground".
Also on No. 8;- "The Hirer shall be responsible for and indemnify the Owner against … all expenses in connection with or arising out of the use of the plant".
In support of the course of dealing, the Plaintiffs relied on two previous transactions in which the Defendants had hired cranes from the Plaintiffs. One was 20th February, 1969; and the other 6th October, 1969. Each was on a printed form which set out the hiring of a crane, the price, the site, and so forth; and also setting out the conditions the same as those here. There were thus only two transactions many months before and they were not known to the Defendants' manager who ordered this crane. In the circumstances I doubt whether those two would be sufficient to show a course of dealing.
In Hollier v. Rambler Motors, (1972) 2 Q. B., page 76, Lord Justice Salmon said he knew of no case "in which it has been decided or even argued that a term could be implied into an oral contract on the strength of a course of dealing (if it can be so called) which consisted at the most of three or four transactions over a period of five years". That was a case of a private individual who had had his car repaired by the defendants and had signed forms with conditions on three orfour occasions. The plaintiff there was not of equal bargaining power with the garage company which repaired the care The conditions were not incorporated.
But here the parties were both in the trade and were of equal "bargaining power. Each was a firm of plant hirers who hired out plant. The Defendants themselves knew that firms in the plant-hiring trade always imposed conditions in regard to the hiring of plant: and that their conditions were on much the same lines. The Defendants' manager, Mr Turner (who knew the crane), was asked about it. He agreed that he had seen these conditions or similar ones in regard to the hiring of plant. He said that most of them were, to one extent or another, variations of a form which he called "the Contractors' Plant Association form". The Defendants themselves (when they let out cranes) used the conditions of that form. The conditions on the Plaintiffs' form were in rather different words, but nevertheless to much the same effect. He was asked one or two further questions which I would like to read:- "(Q) If it was a matter of urgency, you would hire that machine out, and the conditions of hire would no doubt follow? (A) They would...
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