CPA Bulletin

www.cpa.uk.net CPA Bulletin > May 2020 51 Q&As: 4 We supplied an itemof plant under the Model Conditions to one of our customers. The customer informed us it was only to be used during a normal day shift, and we stated that in the hire agreement. To protect the plant, we remotely immobilised the plant in the evening, long after the day shift would have finished. We were contacted by the customer one night, that they were having problems. It seems the customer had not only omitted to informus that they were using the plant for both day and night shifts, but also on this particular evening, one of his workers who had tried to circumvent the immobiliser had caused significant electrical damage to the plant making it inoperable. We collected the plant, and within a few days informed the customer of the repair costs. The customer is not only disputing liability for loss and damage, but also and claiming consequential losses due to the downtime they have suffered for that nightshift. Can you please advise us where we stand? As the rig was hired out under the Model Conditions, then under definitions of a day (clause 1(h)), the working day is classed as 8.00am to 4.30pm (3.30pm on a Friday). If they have worked the machine beyond those hours, then they should be charged an overtime rate. If the customer had informed you that they would be working the machine through a day and a night shift, then they would have either been charged an overtime rate - for hours in excess of the standard day rate; or, been charged a flat day rate, and a separate night rate. In either case this should have been stated in the hire agreement. The important point to note is how long the plant had been on site before this issue occurred? You should refer to clause 5(a), where it states that if the plant is supplied without an operator, then after 3 days it will be deemed to be in good order, save for an inherent fault or a fault not ascertainable by reasonable examination. So, you may wish to speak to the plant’s manufacturer and the immobiliser company to ascertain what the possibilities are for the plant and immobiliser to fail so catastrophically without some external intervention. Under clause 5(b) it states that the Hirer (and his people) should keep themselves acquainted with the state of the plant, and if they continue to use it inappropriately, then they are liable for any damage. This responsibility for damage is also outlined in clause 13(b) as well as ongoing loss of hire charges until settlement is agreed. As for their claim of consequential losses, this is addressed in clause 12. If something occurs which is outside your reasonable control, then you cannot be held accountable for the customer’s consequential (or other) losses. The key here is to discover if/when they informed you - in writing - that the plant was working during the night. In the meantime, you can respond to your customer highlighting the various clauses in the Model Conditions I have highlighted and await his response. If you need any further assistance, then please get in touch. q A At Bennetts Cranes we pride ourselves on being the experts in tower cranes. We have an extensive and modern fleet of cranes suitable for both residential and commercial construction sites. Tower crane specialist CONTACT US TODAY tower-crane.co.uk 01453 811754 office@tower-crane.co.uk Luffing jib Saddle jib Self-erecting FOR HIRE AND FOR SALE | UK RAIMONDI DEALER