Jose v MacSalvors Plant Hire Ltd

Standard plant-hire clauses transferring responsibility for an operator’s negligence do not ordinarily transfer liability for the owner’s own negligence or breach of statutory duty. A clause treating the supplied operator as the hirer’s servant concerns the allocation of vicarious responsibility between the contracting parties. It does not indemnify the owner against its own breach.

A broadly worded indemnity for claims arising from use of the plant remains subject to the Alderslade principles. Where other realistic, non-negligence liabilities fall within the words, the clause does not cover the proferens’s own negligence unless that intention is expressed in clear and unmistakable terms.

A crane operator was injured when he stepped backwards from the crane’s superstructure and fell. He claimed against the crane owner, alleging negligence and breach of statutory duty. Liability was agreed, with 25% contributory negligence, and the claim was compromised.

The owner then sought an indemnity from the hirer under clauses 8 and 13 of the CPA model plant-hire conditions. The county court rejected the claim, holding that clause 8 dealt with the operator’s negligence and that clause 13 did not clearly indemnify the owner against its own negligence. The owner appealed. The central issue was whether either clause transferred liability for the owner’s own negligence or breach of statutory duty.

1. Appeal dismissed. The owner had no valid claim under either clause 8 or clause 13.
2. Clause 8, properly construed, made the supplied operator the hirer’s servant for the purpose of allocating responsibility between owner and hirer for claims by third parties arising from the operator’s negligent operation of the plant. It did not make the hirer liable for a claim arising from the owner’s own negligence. This construction was supported by Arthur White and Thompson.
3. Clause 13 was an indemnity clause, notwithstanding the contrary characterisation in Hewden Tower Cranes. The court was bound by E. Scott (Plant Hire), which applied the principles in Alderslade and Canada Steamship. The wide words of clause 13 were capable of covering several realistic liabilities not involving the owner’s negligence. They therefore did not cover the owner’s own negligence without express and unmistakable language.
4. The owner’s breach of regulation 6(1) of the Construction (Health, Safety and Welfare) Regulations 1996, requiring suitable and sufficient steps to prevent falls so far as reasonably practicable, inevitably involved negligence. The owner could not avoid the clear-wording rule by describing the liability as breach of statutory duty.
5. Hewden Tower Cranes was confined to its facts and issue. Its description of clause 13 as an allocation-of-risk clause was not part of its ratio and did not bind this court.

• Court of Appeal (Civil Division) — [2009] EWCA Civ 1329: dismissed the owner’s appeal.
• Taunton County Court — claim under the CPA conditions dismissed. The county court held that clause 8 did not cover the owner’s own negligence and that clause 13 did not clearly provide such an indemnity.