Hewden Tower Cranes Ltd. v Yarm Road Ltd. & Anor

Under standard plant-hire conditions, an owner’s acceptance of liability for loss arising during the erection of plant may extend beyond its initial assembly. Where a tower crane is designed to be heightened during the hire, adding mast sections by a climbing operation is capable of constituting erection.

If erection occurs in stages, the requirement for the owner’s exclusive control is assessed by reference to the stage during which the loss arises. Preparatory work undertaken jointly does not prevent a later, distinct climbing stage from being under the owner’s exclusive control. General contractual indemnities yield to specific provisions allocating risk for hired plant.

A tower crane supplied by Hewden Tower Cranes Ltd collapsed while being heightened by a climbing operation at a construction site. The collapse caused fatalities, injuries, property damage and delay. Yarm Road Ltd sought compensation under contractual provisions governing the allocation of risk between hirer and owner.

The Technology and Construction Court determined preliminary issues in Yarm’s favour. It held that climbing was the erection of plant under clause 13(c)(ii) of the CPA Conditions and that the operation was under Hewden’s exclusive control. Hewden appealed. Yarm cross-appealed concerning the effect of a general indemnity in clause 11 of its KCB Terms.

The central questions were whether climbing constituted erection, whether the relevant operation was under Hewden’s exclusive control, and which contractual indemnity governed the loss.

1. Disposition. By a majority, the appeal was dismissed. The cross-appeal was dismissed unanimously. Sir Martin Nourse and Pill LJ held that clause 13(c)(ii) placed responsibility for the collapse on Hewden. Laws LJ dissented on the appeal but agreed that the cross-appeal should fail.
2. Erection of plant. The climbing operation was within the meaning of “erection of any plant” in clause 13(c)(ii) of the CPA Conditions. Per Pill LJ, the clause allocated risk according to whether the relevant operation was the owner’s responsibility. Its references to erection and dismantling were not confined to the beginning and end of the hire. Adding substantial mast sections to a crane so that it could attain its required height had the hallmarks of erection. Sir Martin Nourse also reasoned that the additional mast sections could themselves be plant or accessories requiring complete erection on site.
3. Exclusive control. The relevant climbing stage was under Hewden’s exclusive control. The preparatory fitting and welding of ties could be separated from the substantial climbing operation. Once Yarm’s preparatory work had been completed and tested, the crane was handed to Hewden’s specialist erection team. Hewden controlled the crane until climbing, load testing and formal hand-back were complete. Where erection comprises stages, the proviso may be applied to the stage during which the damage arises.
4. Other contractual powers. Yarm’s health and safety powers and its right to reject method statements did not prevent Hewden from having exclusive control while the climbing operation was permitted to proceed. An unexercised contractual right to intervene does not itself negate another party’s exclusive control.
5. Operators and indemnities. Clause 8 merely entitled the hirer to direct an owner-supplied driver. It did not establish that Yarm exercised direction or control over the driver or Hewden’s specialist operatives during climbing. Clause 13(c)(ii) therefore displaced Yarm’s general responsibility under clause 13(b).
6. General indemnity. Clause 11 of the KCB Terms did not prevail over the specific allocation of responsibility in the CPA Conditions. Clause 16 of the same KCB Terms incorporated those conditions. The provisions could be read consistently by treating the general indemnity as operating only where the parties had not made a specific allocation of risk.
7. Dissent. Laws LJ would have allowed the appeal. He regarded climbing as an adaptation rather than erection and considered the preparatory work integral to the climb, with the result that Hewden lacked exclusive control.

1. Court of Appeal (Civil Division): By a majority, dismissed Hewden’s appeal from the determination of the preliminary issues. Unanimously dismissed Yarm’s cross-appeal: [2003] EWCA Civ 1127.
2. Technology and Construction Court: His Honour Judge Richard Seymour QC decided ten preliminary issues on 4 November 2002. He held, among other matters, that climbing was erection under clause 13(c)(ii), that the operation was under Hewden’s exclusive control, and that the specific CPA Conditions prevailed over the general indemnity.