CPA Bulletin

www.cpa.uk.net CPA Bulletin > December 2018 49 Q&As: 2 Could you please advise whether you have a sample Sales Agreement for sales of machinery? a I’m afraid the CPA does not have any sample Sales Agreements. The only example available is a ‘Sold as Seen’ document, which gives an overview of the condition of the machine under various headings. With regards to the damage to the machine – it looks like this was hired out on a self-drive basis to your customer, and presumably under the Model Conditions. If that is the case then you don’t need any special wording to send to your customers, as you are covered under the Model Conditions. Under clause 13(b) of the Model Conditions, it states that the customer is liable for all loss or damage to the machine from whatever cause may arise during the hire period. So in this unfortunate situation where the fire-suppressant system was activated by the customer’s operator – albeit an agency driver – the customer is responsible for the resulting damage. The customer should have ‘hired-in plant’ insurance, which should address this matter. If he is refusing to settle the claim for damage, or hasn’t insurance cover, then you can either hand the matter to your insurance broker who can pursue him on your behalf through your insurer’s litigation department, or you can take your customer to court yourself. To further highlight your customer’s responsibilities – you could refer him to section 8 of PUWER – where the operator had no familiarisation or instruction which is a requirement of the employer (your customer). Your delivery driver had given familiarisation to agency driver 1. The fact that he was replaced by the customer was his choice, not yours. So the onus rests with your customer. a All of my equipment is fitted with permanently installed automatic and manual fire suppression systems. Installations can cost around £12,000 per machine (25T excavator) I have a customer who used different agency operators each day: Day 1 - our delivery staff showed the operator how to start themachine etc. on delivery. Day 2 - a different agency operator who had no instructions tried to start themachinewith the fire systemmanual activation switch and big red buttonmarked “FIRE”which is positioned behind the driver’s seat. We had to send an engineer to bypass the automatic isolation, move the machine from the work area, recover this machine, deliver a replacement, deep-clean and neutralise the extinguishing media (salt-based!) Wait 5 days to have the system re-filled and reactivated. I am having issues trying to recover my costs frommy customer. I cannot see any way CPA T&Cs cover this eventuality, I believe I will need to send every customer some legal wording to cover me? We have recently collected a machine after a hire had finished and no damage was recorded on the lorry driver’s collection sheet. However, upon the machine’s return to the depot, a more detailed inspection revealed significant damage. Under CPA terms and conditions what are the rules regarding the above? a The Hirer is liable for any loss or damage to the machine during the hire period, as per clause 13(b) of the Model Conditions. However, the Hirer may try to argue that as your driver had failed to record any damage when it was collected, then they shouldn’t be held liable. However, the amount of time the driver may have taken to examine the machine, the quality of light, weather / site conditions, etc. may have been factors for the driver failing to notice the damage. Yet ultimately, if the machine was free of any damage when it was delivered to site, but was significantly damaged on its return, this will still make the Hirer liable for the damage; unless the Hirer can prove that the damage was caused when the machine occurred when it was being unloaded back at the depot. One of my drivers received a caution from a police officer for incorrectly using a ‘pelican’ crossing. What are the rules for drivers when observing a ‘pelican’ crossing rather than a conventional traffic lights crossing? For drivers, the only difference between a pelican crossing and the conventional three-light signals is the flashing amber signal which appears after the red light, instead of the customary red/amber signal. When the amber light is flashing, pedestrians still have precedence on the crossing but traffic can proceed if no pedestrians are using it. The signals remain green to vehicles until the press-button control is operated. A driver is prohibited from stopping: • on a pelican crossing, unless prevented from proceeding by circumstances beyond their control, or to avoid an accident • on the zig-zag markings either side of the crossing, except: • to comply with the light signals • for fire brigade, police or ambulance purposes • If unavoidable, for building, demolition or statutory undertakers such as a utility organisations’ work. a

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