CPA Bulletin

38 CPA Bulletin > November 2023 www.cpa.uk.net Q&As: 1 q&a s From the photos you have provided - which presumably the customer has been sent copies - highlights the extent of damage to the machine. Although it is understood that there may be some scratches on a machine - as can arise when the machine is working on site - if the damage is more extensive, then there will be a cost to the customer. Clause 13(b) of the Model Conditions states that the customer is ‘...liable for all loss of or damage to the Plant...’ during the Hire Period. In this instance, the position is clear. The customer is liable for the brand new replacement cost of the damaged parts to the machine. We supplied amachine to a customer under the Model Conditions. When it was returned, some of themachine’s panels were damaged, as were the light guards. Consequently, we have charged the customer for brand new replacements. Our customer is disputing our right to charge for brand new replacements due to existing very minor damage to them. I have attached some ‘before’ and ‘after’ pictures of the hire. Can you please give us your view on whether we should charge for brand new replacements under the circumstances. Our customer suggests that as we are supplying an operator with the machine, then we are completing the work as a ‘sub-contractor’ rather than as a ‘plant supplier’, irrespective that the hire was agreed by them to be under the Model Conditions. What are your thoughts on the subject? Their thinking that you qualify as a sub-contractor is based on the CIS - Construction Industry Scheme, which is triggered when any personnel are supplied to carry out works within the sphere of construction. The fact that you are not a sub-contractor in the true sense is on the basis that you are not taking over the activity on behalf of the customer, i.e., when carrying out a lifting operating on behalf of the customer under the contract lift conditions. As you supplied the plant and operator under the Model Conditions, you are merely a service provider. If the customer persists with their view as to your status, then the CPA has a draft template letter which outlines the relationship between both parties and clarifying that you are not a sub-contractor. We have hired out some equipment to a customer, who then cross-hired them on to a third party which has since gone into administration. My customer contacted me asking to off hire the equipment, which we agreed to subject to them collecting the equipment from site and returning them to us. Two weeks have passed, and the equipment remains on the third party’s site. I do not want to be unreasonable, but clause 23(c) states that if the equipment is not available for collection, then it remains on hire. What do you advise in this situation? As your contract is with your customer - and under the Model Conditions - then clause 15 would also apply, so written authorisation would need to be obtained from you before your customer hired it on to a third party. You are correct with your interpretation of clause 23(c) and could continue to charge your customer for the equipment until it is returned. Whether you wish to charge the full rate, a two-third’s rate, or something else, is your decision. It will help your customer if they contact the third party’s Administrator to see if the equipment can be recovered at the earliest opportunity. Other suppliers may also want to recover their equipment too; however, there is no guarantee that the Administrator will grant any requests. Whilst every care has been taken to ensure the accuracy of the answers given within this section of the CPA Bulletin, no liability for any damage, liability, cost, loss and/or expense which the reader has incurred can be accepted by the Construction Plant-hire Association (CPA). The reader should obtain independent legal advice on any issue reported within the CPA Bulletin, before proceeding with a course of action.