CPA Bulletin

www.cpa.uk.net CPA Bulletin > November 2024 39 Q&As: 3 If the machine was supplied under the Model Conditions, then you need to look at clause 7 – Ground and Site Conditions. It is the customer’s responsibility to ensure that the ground is suitable for the machine – whether, for example, it is being loaded, unloaded, or moved over the site. If the ground is not suitable, for whatever reason, then the onus is on the customer to remedy that issue. Should the customer try and apportion blame on to your operator, then you need to refer them to clause 8 - Handling of Plant. Provided that the operator is competent, i.e. has a valid card for the machine being operated, then the operator is deemed to be the customer’s servant or agent, and will be under their direction and control, and so liable for the operator’s actions. As a result of the incident, i.e. damage to the machine, clause 13 - Hirer’s Responsibility for Loss and Damage will take effect. The customer will be liable for the damage, and the on-going two-thirds hire charges until the matter is settled. I hope this answers your question. We have had an unfortunate incident on site, where one of our machines had tipped over as a result of the site’s ground conditions, rather than our operator’s error. Luckily, no-one was hurt, but the question remains who is liable for the resulting damage to the machine. Can you provide some guidance. This difficulty does arise from time to time. The problem stems fromwhere suppliers such as yourself provide an operator/driver and machine to your customer, who as a consequence may automatically apply the Construction Industry Scheme (CIS), and adopt those protocols as they see fit, i.e. they treat you as a sub-contractor and send you their terms and conditions. [By using the CPA’s template letter which explains that you are not a sub-contractor, but merely a plant supplier can help resolve this issue. A copy of the draft template letter can be found within the ‘Hire Conditions’ section, within ‘Legal’ on the CPA’s website.] Some customers will try and get suppliers to sign their terms before payment is made, even though they may have already accepted the Model Conditions. The confusion is that because CIS applies, customers – whether it is their QS or their accounts department -, then automatically feel that they have to impose their own conditions as a consequence. This is not the case. CIS payments can be made without having to sign up to the customer’s terms, particularly when the Model Conditions have already been accepted. In this case, I am unaware of any justification for your customer to withhold payment, so it may be worth enquiring why they cannot pay you without signing their terms, when they have pre-agreed to the Model Conditions. If this problem persists, then please get back in touch. We as a plant-hire company have, over the years, had to complete many sub-contractors’ forms received from our customers. We complete these forms as much as possible, enclosing information, including our insurance policies, etc.; but we do not sign the form, and we enclose our covering letter with the CPA Model Terms and Conditions which up to now has been accepted by our customers. However, we currently have a customer who has yet to settle their account; but will not do so until we sign their form. Have you any advice you can give to encourage them to settle without us having to sign their form, and be liable under their conditions? I am sorry to read of the incident occurring on site. Unfortunately, with mechanical equipment, there is always a possibility that a hydraulic hose will burst – sometimes at the most inappropriate time or place. As the hire was under the CPA’s Model Conditions, you may wish to refer to clause 13(b) - Hirer’s Responsibility for Loss and Damage. Within that clause, the following sentence can be found: ‘… and [the Hirer] shall also fully and completely indemnify the Owner and any personnel supplied by 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.’ Based on that clause, to my mind, the plant company would not be liable for the damage caused by the leak. I hope this answers your question, but should you have any further questions, then please get in touch. We had hired in a machine under the CPA’s Model Conditions. A few days after it had arrived on site, a hydraulic hose failed, which resulted in a large amount of oil leaked out resulting in extensive contamination on the site, and regrettably, looks to have affected a nearby watercourse. I contacted the plant company to discuss the ‘clean-up’ costs, as they appear to be significant. The plant company have claimed that they are not liable for these costs due to us agreeing to the CPA’s Model Conditions. Could you please confirm if - under the Model Conditions – that the plant company is indeed not liable for any ‘clean-up’ costs?