Jose v Macsalvors Ltd & others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward,Lady Justice Smith,Lord Justice Rimer |
| Judgment Date | 15 December 2009 |
| Neutral Citation | [2009] EWCA Civ 1329 |
| Date | 15 December 2009 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2008/2905 |
[2009] EWCA Civ 1329
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE BROMILOW
TAUNTON COUNTY COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Ward
Lady Justice Smith and
Lord Justice Rimer
Case No: B3/2008/2905
5TA01405
Andrew Davis (instructed by Morgan Cole) for the Appellant
Peter Cowan (instructed by Berrymans Lace Mawer) for the Respondent
Hearing date: 5th October 2009
Lord Justice Ward:
The respondent, Brush Transformers Ltd, whom I shall call “the Hirer”, was carrying out work at an electricity sub-station in Newton Abbott and, as it had regularly done in the past when the need arose, it hired a large mobile crane from MacSalvors (Plant Hire) Ltd, whom I shall call “the Owner”. The crane was supplied with an experienced operator, Mr Thomas Jose. He gave this graphic account of what happened to him on 10th July 2002, the first day of the hire:
“I was on hire to WPD at Newton Abbott sub-station driving a Grove GMK 4075 80 tonne capacity crane No. Reg. no. WK02 UEG. I climbed onto the tool box at the rear of the superstructure cab to check the hoist rope and adjust the mirror, and to clean some footprints off the top of the box. When I had finished, I stepped backwards off the tool box thinking I had left the crane slewed in line with the chassis and that the deck would be below me. Unfortunately, this was not the case and I stepped back into nothing and I fell to the ground thereby sustaining my injuries.”
He brought a claim against the Owner for damages for personal injuries, loss and damage caused by their negligence and/or breach of statutory duty. Liability was agreed with the claimant accepting that he had been 25% contributorily negligent. The claim was then compromised by the Owner agreeing to pay Mr Jose damages in the sum of £50,000.
The Owner brought third party proceedings (to my mind a much more intelligible phrase than Part 20 proceedings) claiming against the Hirer to be indemnified by virtue of the Model Conditions of the CPA agreement for the hiring of plant made between the Owner and the Hirer. The material clauses of that agreement are the following:
“ 8. HANDLING OF PLANT
When a driver or operator or any person is supplied by the Owner with the plant, the Owner shall supply a person competent in operating the plant or for such purpose for which the person is supplied and such person shall be under the direction and control of the Hirer. Such drivers or operators or persons shall for all purposes in connection with their employment in the working of the plant be regarded as the servants or agents of the Hirer (but without prejudice to any of the provisions of Clause 13) who also shall be responsible for all claims arising in connection with the operation of the plant by the said drivers/operators/persons. The Hirer shall not allow any other person to operate such plant without the Owner's previous consent to be confirmed in writing.
…
13. HIRER'S RESPONSIBILITY FOR DAMAGE AND LOSS
(a) For the avoidance of doubt it is hereby declared and agreed that nothing in this Clause affects the operation of clauses 4, 5, 8 and 9 of this Agreement.
(b) During the continuance of the hire period the Hirer shall subject to the provisions referred to in sub-paragraph (a) make good to the Owner all loss of or damage to the plant from whatever cause the same may arise, fair wear and tear excepted, and except as provided in Clause 9 herein shall also fully and completely indemnify the Owner in respect of all claims by any person whatsoever for injury to person or property caused by or in connection with or arising out of the storage, transit, transport, unloading, loading or use of the plant during the continuance of the hire period, and in respect of all costs and charges in connection therewith whether arising under statute or common law. In event of loss of or damage to the plant, hire charges shall be continued at idle time rates as defined in Clause 25 until settlement has been effected.
(c) Notwithstanding the above the Hirer shall not be responsible for loss, damage or injury due to or arising:
(i) prior to delivery of any plant to the site (or where the site is not immediately adjacent to a highway maintainable at the public expense, prior to its leaving such highway) where the plant is in transit by transport of the Owner or as otherwise arranged by the Owner,
(ii) during the erection and/or dismantling of any plant where such plant requires to be completely erected/dismantled on site, always provided that such erection/dismantling is under the exclusive control of the Owner or his Agent,
(iii) after the plant has been removed from the site and is in transit on a highway maintainable at the public expense (or where the site is not immediately adjacent to a highway maintainable at the public expense after it has joined such highway) to the Owner by transport of the Owner or as otherwise arranged by the Owner,
(iv) where plant is travelling to or from a site on a highway maintainable at the public expense (or, where the site is not immediately adjacent to a highway maintainable at the public expense prior to its leaving or after its joining such highway) under its own powers with a driver supplied by the Owner.”
These proceedings between the Owner and the Hirer were heard by His Honour Judge Bromilow in the Taunton County Court on 20th May 2008 and he handed down his written judgment on 4th July 2008. The judge had to consider issues raised on the pleadings, the first of which questioned whether the Owner had supplied a person competent in operating the crane. He had no difficulty in concluding that Mr Jose was indeed competent even though he plainly carried out an unwise method of descent on the occasion in question. He rejected the Hirer's second contention that the sole cause of the accident was the negligence of Mr Jose. He concluded that the Owner was in breach of regulation 6 of the Construction (Health, Safety and Welfare) Regulations 1996 and that the Owner was therefore entirely right to concede Mr Jose's claim for damages. In his opinion, Clause 8 was intended to cover the situation where the actions of the operator caused an accident and there was some consequential loss and damage. The wording of Clause 13 did not assist the Owner because “if contractors … wish to exempt themselves from their own acts of negligence then they must set this out in express and specific terms”, but that had not been done. He held that he was bound by E Scott (Plant Hire) Ltd v British Waterways Board, Court of Appeal, 20 December 1982 unreported, and the similarities between that case and this were “obvious”.
So he dismissed the Owner's claim against the Hirer and the Owner now appeals with permission granted by Goldring L.J.
Discussion: Clause 8
Mr Andrew Davis, for the appellant, submits that the words of Clause 8 are wide and unlimited in their reach and scope: he emphasises that the operators shall “for all purposes” be regarded as the servants of the Hirer and that the Hirer shall be responsible “for all claims” arising in connection with the operation of the plant – his emphasis being added. The only limitation is that the claim must arise in connection with the operation of the plant. Checking the hoist rope and adjusting the mirror at the back of the cab were activities arising in connection with the operation of the crane and so he submits “all claims” include a claim by the driver.
I cannot accept that argument. Were I to construe the clause without regard to any previous authority, I would look to the context for the background against which the words are to take their meaning. This is a clause concerned with “handling of plant”. It envisages claims arising out of the negligent handling. What is in the parties' contemplation is negligent handling which causes injury or loss to a third party. Although he may be about the business of the Hirer, the driver remains the servant of the Owner and the Hirer would not be vicariously liable for his actions. Since the driver is beyond the Owner's actual control, the Owner not unnaturally wishes to pass responsibility for the driver's negligence to the Hirer. This is achieved by Clause 8. Provided that a competent driver is supplied, then the parties agree to treat him as the servant of the Hirer and, as between them, the Hirer will be responsible for all claims arising out of his operation of the plant. In the context of this Clause the meaning and purpose is clear: it is to regulate the liability as between Owner and Hirer in respect of claims brought by third parties arising out of the negligence of the driver. What was not being contemplated was making the Hirer liable for a claim arising out of the Owner's own negligence.
That view is amply borne out by the authorities. Arthur White (Contractors) Ltd v Tarmac Civil Engineering Ltd on appeal from Spalding v Tarmac Civil Engineering Ltd [1967] 1 W.L.R. 1508 concerned a claim by a worker who was injured when the boom of a crane collapsed onto him. The crane had been hired by Tarmac under a contract of hire in the standard form of the Confederation of Plant Hirers in identical terms to Clause 8 before us save only that there it was the Hirer “who alone shall be responsible for all claims” whereas the words here are the Hirer “who also shall be responsible”. It is common ground the change makes no difference to the Clause overall. Lord Morris of Borth-y-Gest considered at...
To continue reading
Request your trial
-
Onego Shipping & Chartering BV v JSC Arcadia Shipping (The "Socol 3")
...Wales Switchgear (an indemnity for “any liability, loss, claim or proceedings whatsoever under statute or common law”); Thomas Henry Jose v MacSalvors Plant Hire Ltd [2009] EWCA Civ 1329 (an indemnity for “all claims by any person whatsoever for injury to person or property”). These divergi......
-
Security for performance
...BLr 139 at 144 [10], per Lord Bingham; Balfour Beatty Ltd v Gilcomston North Ltd [2006] CSOh 81; Jose v MacSalvors Plant Hire Ltd [2009] EWCa Civ 1329. 139 Petroleo Brasileiro S.A. v E.N.E. Kos 1 Limited [2012] UKSC 17 at [37], per Lord Mance JSC. SeCURiTY FOR PeRFORmANCe or equipment, incl......