CPA Bulletin

www.cpa.uk.net CPA Bulletin > November 2019 49 Q&As: 2 One of our customers ordered a smaller type machine for their site. We unfortunately didn’t have one available, so sent a larger machine, but at the smaller machine’s hire rate. During the hire period, themachine toppled over. We are now in dispute with the customer as to which hire rate the loss-of-hire (idle-time rate) should be set at - the normal rate for the larger machine or the lower rate for the smaller machine originally ordered? If the machine was contracted at a specific rate in the hire agreement, then the clauses within the Model Conditions will refer to that rate. So, although a larger machine was provided, the contract hire rate was based on a smaller machine, which both parties accepted. As the machine was subsequently damaged during the hire period, I think it very unlikely you’ll be able to charge a higher idle-time rate to reflect the larger machine, when the hire contract stipulated an agreed lower rate. I have reproduced clause 25 of the Model Conditions for your information below: 25. IDLE TIME When the Plant is prevented fromworking for a complete Working Week, the hire charges shall be two thirds of the hire rate or such other idle time rate as is agreed in writing by the Owner for the period during which the Plant is not in use. If the Plant works for any time during the Working Day, then the whole of that Working Day shall be charged as working time. In any case no period less than one Working Day shall be reckoned as idle time save for as provided for in clause 18(e). Where an “All-In” rate is charged, idle time is calculated on the machine element only. Full rate will be charged for the operator. You may be able to slightly increase the idle-time rate if an operator was supplied with the machine. q A Can you confirm that when hiring out small items, such as compactor plates and hydraulic breaker packs, this should be done using the Model Conditions, as well as the Supplementary Conditions applicable to Tool and Equipment hire. You are quite correct in using both sets of terms and conditions. These are used for business-to-business hire agreements whether an operator is supplied or not. If you are hiring out to a consumer (homeowner), then you should use either set of Consumer Conditions, depending on whether an operator is to be supplied or not. q A Can the CPA’s Model Conditions be used if hiring plant and equipment to a customer based in the Republic of Ireland? Yes. If there is a dispute, then under clause 35 it states that the court jurisdiction will be decided by the location of the Plant owner’s Head Office, if the site is outside of the UK. q A We hired an operator and machine with breaker to one of our customers under the Model Conditions. The operator supplied has the relevant CPCS card and so is competent. Whilst operating the machine, the breaker’s action caused a small stone to fly up and break the machine’s windscreen. The customer is refusing to accept any responsibility for the damaged windscreen, as he states that our operator was in charge of the machine when it happened. Can you let us know our position? As the machine was supplied under the Model Conditions, and damaged during the hire period, then the customer is responsible for any loss or damage to the machine under clause 13(b). The operator you supplied was competent - under clause 8 - as he held the relevant CPCS card for that machine. Within clause 8, it also states that any person supplied is under the direction and control of the customer, and deemed to be their employee during the hire period. Under these two clauses, the customer is liable for the damaged windscreen whether the operator was in charge of the machine at the time or not. q A