Ipsofactoj.com: International Cases [2004] Part 2 Case 11 [CAEW]


COURT OF APPEAL, ENGLAND & WALES

Coram

Hewden Tower Cranes Ltd

- vs -

Yarm Road Ltd

LORD JUSTICE PILL

LORD JUSTICE LAWS

SIR MARTIN NOURSE

31 JULY 2003


Judgment

Lord Justice Laws

INTRODUCTORY

  1. This is an appeal, brought with permission granted by the judge below, against the decision of His Honour Judge Richard Seymour QC given in the Technology and Construction Court on 4 November 2002. On that date the judge delivered his judgment upon ten preliminary issues in the action between the parties. These preliminary issues had been ordered to be tried at a case management conference held on 19 July 2002, presided over by His Honour Judge Richard Havery QC. The appeal concerned Judge Seymour’s conclusions on Issues numbered 1 – 4. There is a respondent’s notice seeking to challenge his conclusion on Issue 5.

  2. The action arose out of the collapse on 21 May 2000 of a tower crane referred to as "TC3" at the site of the new HSBC headquarters building at Canary Wharf in Docklands. The building was to comprise 44 storeys, excluding the basement and car park. TC3 was one of five tower cranes which had been hired by the first claimant (first respondent to the appeal), Yarm Road Ltd, to which I shall refer to as "Yarm", from the defendant (the appellant) to which I shall refer as "Hewden". The second claimant/respondent claimed as assignee of certain rights of Yarm. There was an issue relating to the assignment before the judge below, but it forms no part of the appeal or the cross-appeal, and for convenience I shall to refer to the claim as if Yarm were the sole claimants.

  3. TC3 collapsed in the course of an exercise called "climbing". The judge below described this process in outline in paragraph 2 of his judgment as follows:

    Climbing’ is an operation during which the height of the crane is increased by adding new sections to the tower. In recent years in the United Kingdom it has been a relatively uncommon operation, as I understand it, and it is only really necessary if a very tall building – what used to be called a skyscraper – is under construction. Although tower cranes are customarily used in the construction of lower rise buildings, generally the crane is erected to the full height ultimately desired when first taken to site. This is not possible with a tower crane used in the construction of a very tall building because as the building rises the crane requires support from the structure under construction as the height of the crane increases.

    It will be necessary to examine this process of "climbing" in a little more detail in due course. The crane’s collapse caused three fatalities, serious injury to two other persons, extensive property damage, and very substantial delay and disruption to the construction works on site. The claim against Hewden was initially pleaded at just under £8 million; but Mr. Stewart QC for Hewden told us that the total sum now in fact the subject of the claim is some £16.6 million.

    THE CONTRACT

  4. In order to understand the five relevant preliminary issues, it is necessary to set out some of the materials which constituted the contract between Yarm and Hewden. It is common ground that the contract was contained in or incorporated a number of documents, including six in particular. These have been respectively referred to in the proceedings as "the Order", "the KCB Terms", "the CPA Conditions", "the Scope of Works", "Site Safety Plan Section 17", and "Health and Safety Information for Constructors". On the first page of the Order appeared these words: "Standard Terms and Conditions of Purchase printed overleaf apply where they do not conflict with any specific written agreement herein". The KCB Terms were printed on the reverse of the Order. There were 21 numbered clauses. I should read clauses 11 and 16:

    11.

    INDEMNITY

    The Supplier shall indemnify the Purchaser against any loss or damage including any claim made by any third party and any associated costs arising out of the performance or failure to perform this Purchase Order.

    16.

    PLANT HIRE

    Unless otherwise agreed by the Purchaser in writing the Model Conditions for the Hiring of Plant agreed between the Federation of Civil Engineering Contractors and the Construction Plant-hire Association will apply to this Purchase Order in respect of all plant hired for use in the United Kingdom.

    These model conditions, referred to in paragraph 16 of the KCB Terms, are the CPA Conditions. They have gone through a number of versions over the years, being the result of negotiations over a substantial period of time between the Construction Plant-hire Association (representing the plant hire industry), the Federation of Civil Engineering Contractors (representing the main client industry of civil engineering), and the Office of Fair Trading. The judge set out the relevant terms of the CPA Conditions, and I may cite the same extracts:

    1.

    DEFINITIONS

    ....

    (v)

    ‘Plant’ covers all classes of plant, machinery, equipment and accessories therefor which the Owner agrees to hire to the Hirer.

    5.

    DELIVERY IN GOOD ORDER AND MAINTENANCE: INSPECTION REPORTS

    (a)

    Unless notification in writing to the contrary is received by the Owner from the Hirer in the case of plant supplied with an operator within four working days, and in the case of plant supplied without an operator within three working days, of the plant being delivered to the site, the plant shall be deemed to be in good order, save for either an inherent fault or a fault not ascertainable by reasonable examination, in accordance with the terms of the Contract and to the Hirer’s satisfaction, provided that where plant requires to be erected on site, the periods above stated shall be calculated from date of completed erection of plant. The Hirer shall be responsible for its safekeeping, use in a workmanlike manner within the Manufacturer’s rated capacity and return on the completion of the hire in equal good order (fair wear and tear excepted).

    ....

    8.

    HANDLING OF PLANT

    When a driver or operator is supplied by the Owner with the plant, the Owner shall supply a person who is competent in operating the plant and such person shall be under the direction and control of the Hirer. Such drivers or operators shall for all purposes in connection with their employment in the working of the plant be regarded as the servants or agents of the Hirer (but without prejudice to any of the provisions of clause 13) who alone shall be responsible for all claims arising in connection with the operation of the plant by the said drivers or operators. The Hirer shall not allow any other person to operate such plant without the Owner’s previous consent to be confirmed in writing.

    9.

    BREAKDOWN, REPAIRS AND ADJUSTMENT

    ....

    (d)

    The Hirer shall be responsible for all expense involved arising from any breakdown and all loss or damage incurred by the Owner due to the Hirer’s negligence, misdirection or misuse of the plant, whether by the Hirer or his servants, and for the payment of hire at the appropriate idle time rate during the period the plant is necessarily idle due to such breakdown or damage. The Owner will be responsible for the cost of the repairs to the plant involved in breakdowns from all other causes and will bear the cost of providing spare parts.

    13.

    HIRER’S RESPONSIBILITY FOR LOSS AND DAMAGE

    (a)

    For the avoidance of doubt it is hereby declared and agreed that nothing in this Clause affects the operation of Clauses 5, 8 and 9 of this Agreement.

    (b)

    During the continuance of the hire period the Hirer shall subject to the provisions referred to in sub paragraph (a) make good to the Owner all loss of or damage to the plant from whatever cause the same may arise, fair wear and tear excepted, and except as provided in Clause 9 herein, and shall also fully and completely indemnify 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 use of the plant and in respect of all costs and charges in connection therewith whether arising under statute or common law. In the event of loss of or damage to the plant, hire charges shall be continued at idle time rates until settlement has been effected.

    (c)

    Notwithstanding the above the Owner shall accept liability for damage, loss or injury due to or arising

    (i)

    prior to delivery of any plant to the site of the Hirer where the plant is in transit by transport of the Owner or as otherwise arranged by the Owner,

    (ii)

    during the erection of any plant, where such plant requires to be completely erected on the site, always provided that such erection is under the exclusive control of the Owner or his Agent,

    (iii)

    during the dismantling of any plant, where plant requires to be dismantled after use prior to removal from site, always provided that such dismantling is under the exclusive control of the Owner or his Agent,

    (iv)

    after the plant has been removed from the site and is in transit on to the Owner by transport of the Owner or as otherwise arranged by the Owner,

    (v)

    where plant is travelling to or from a site under its own power with a driver supplied by the Owner.

    Site Safety Plan Section 17 contained paragraph 17.1.3, which is headed "Risk Assessments, Safe Systems of Work and Method Statements". It provides as follows:

    A project specific risk assessment will be required for each operation and from this a method statement, incorporating a detailed system of work must be produced for approval by the Employer before work commences on site. The Employer will not allow works to commence before approval of the method.

    The document "Health and Safety Information for Contractors" included paragraph 4.2:

    The Company [sc. in this context, Yarm] retain the right to stop any operation, activity or erection of plant/equipment etc. if it is considered that there is a risk to the safety or health of any person. The Company will not accept responsibility for any increased cost or delay arising out of such action.

    THE ISSUES

  5. The first four preliminary issues directed by His Honour Judge Havery went to the question whether Hewden were liable to Yarm by force of clause 13(c)(ii) of the CPA Conditions or Yarm to Hewden by force of clause 13(b). They were as follows:

    1.

    When tower crane TC3 was being climbed on 21 May 2000 did that operation fall within the meaning of ‘erection of any plant’ in clause 13(c)(ii) of the CPA Model Conditions ....?

    2.

    When tower crane TC3 was being climbed on 21 May 2000 was that operation under the exclusive control of Hewdens or its agent?

    3.

    Were the individuals who undertook the climbing of tower crane TC3 on 21 May 2000 under the direction and control of YRL [viz Yarm] and/or deemed to be the servants and agents of YRL by clause 8 of the CPA Model Conditions?

    4.

    Are Hewdens entitled to be indemnified by YRL .... in relation to the collapse of tower crane TC3 on 21 May 2000:

    4.1

    pursuant to clause 8 of the CPA Model Conditions, and/or

    4.2

    pursuant to clause 13(ii)(b) [sic: this is a mistake for 13(b)] of the CPA Model Conditions

    to the extent and on the terms provided in those clauses?

    The judge answered these four questions respectively Yes, Yes, No, No; and so concluded the question of Hewden’s potential liability under clause 13(c)(ii) in Yarm’s favour. It is his answer to those four questions, and his consequent conclusion as to the application of clause 13(c)(ii), that form the subject matter of the appeal.

  6. The fifth preliminary issue was framed thus:

    5.

    Was clause 11 of YRL’s standard terms and conditions a term of the contract between Yarm and Hewdens?

    The reference is to paragraph 11 of KCB Terms. The Judge’s answer to Issue 5 was (paragraph 55 of the judgment) Yes, "but that does not mean that the term prevails over the terms of the CPA Conditions. It does not." Issue 5 arises for consideration if Hewden defeat Yarm’s claim under clause 13(c)(ii); and in that event Yarm submit (by their respondent’s notice) that the answer to Issue 5 should simply have been an unequivocal affirmative, entitling them to succeed against Hewden by force of clause 11 of the KCB Terms.

    THE FACTS

  7. Having regard in particular to the issues arising on the appeal, it is necessary to say rather more about the facts, and not least what was involved in the procedure called "climbing".

  8. The tower crane TC3 had arrived on site and been brought into service at about the beginning of September 1999. Before 21 May 2000, its height had been increased by "climbing" on 3 occasions, namely on 20 February 2000, 26 March 2000 and 12 April 2000. When climbing had to be carried out so as to increase the height of the crane, it was necessary to tie the crane mast to the building, lift the top of the crane, and insert additional mast sections using the crane’s own external self-climb equipment. The procedure involved the fitting of what is called a tie collar around the mast of the crane at a pre-determined height. Then three telescopic tie legs are connected to the tie collar at one end, and to an anchor point on the building at the other end. The crane was then balanced using a spirit level, the ties adjusted, and the telescopic part of the tie legs welded. The welds were tested, and if all was satisfactory the crane would then be climbed, by means of a climbing frame. This had two sections. There was an outer section which incorporated a hydraulic unit. That was used to raise the top of the crane. This outer part also had a platform on to which a new section of mast could be lifted by the crane itself. From thence the new section could be inserted into the gap created by raising the top of the crane. There it would be secured by appropriate means. The evidence was that each climb involved the introduction of six new sections of mast, each 4.5 metres long, thus raising the crane by 27 metres. Since obviously the crane was out of use when being climbed, the practice was for the climbing operation to take place at weekends, thus minimising the time in which the crane could not be deployed for its proper purpose.

  9. The evidence as to the parts played in this whole operation respectively by Yarm’s workers and operatives and Hewden’s workers and operatives was given by Mr. Raj Soni, Yarm’s Deputy Project Director, and Mr. Mark Rumbles, Site Supervisor, who worked directly to Mr. Soni. Hewden called no live evidence and offered, as I understand it, no real challenge to what Mr. Soni and Mr. Rumbles had to say. The judge set out verbatim substantial passages from Mr. Rumbles’ witness statement. For my part I would summarise the effect of the relevant evidence as follows.

  10. Hewden had a specialist team for the execution of the climbing operation. When the need for an extension of the crane by climbing was anticipated, the timing for that to happen would generally be agreed between Mr. Soni and a relevant person at Hewden. Hewden would inform Yarm what crane loads were to be imposed on the ties, and Yarm’s design engineer would then design the tie accordingly. Hewden produced drawings to show the chosen location of the ties. Yarm had some discretion to ‘fine tune’ the location. Mr. Rumbles would have been asked by Mr. Soni to make preparation for all temporary works associated with the climbing operation. They would include, as I understand it, a temporary diagonal and horizontal bracing system for the ties. When that was completed, Hewden’s specialist team would come onto the site, generally on a Friday. They would then work with Yarm’s people to install the tie collar. When that was done, Yarm’s operatives would attach the telescopic ties. After the crane was balanced to Hewden’s satisfaction, Yarm would complete the welding of the ties, an earlier tac weld having been made on Hewden’s instructions. After the welds had been inspected and tested, Hewden’s team, usually starting on the Saturday morning, would carry out the actual operation of extending the crane by means of the climbing frame and hydraulic unit as I have briefly described them. In this stage of the process – I use those words so as to beg no questions pertinent to the construction of the contract – Yarm’s operatives played no part. The crane was handed back for its use to recommence after it had been load-tested and signed off by Hewden’s erection supervisor, Mr. Whittard.

  11. It is, I understand, common ground that the collapse of TC3 took place after the ties had been fitted and welded, and checked and certified as fit. That fact, does not however imply that the cause of the catastrophe must necessarily be attributed to anything done or omitted by Hewden’s operatives during the actual climbing process. The cause or causes are at present unknown. Although the collapse took place more than three years ago, even today no report from the Health and Safety Executive dealing with the incident’s cause or causes has been produced.

    ISSUE 1:

    DISCUSSION AND CONCLUSION

  12. For convenience I summarise again the question arising on Issue 1: did the climbing operation executed on 21 May 2000 fall within the meaning of "erection of any plant" within clause 13(c)(ii) of the CPA Conditions? If it did, then subject to the answers to Issues 2 and 3, Hewden would be exposed to liability to Yarm for the claims against it arising out of the collapse of TC3. If it did not, Yarm would be obliged to save Hewden from any claim against them arising from the collapse, unless Yarm’s cross appeal relating to Issue 5 is good.

  13. As I have indicated, the judge found in favour of Yarm on Issue 1. He said this (judgment paragraph 29):

    It seems to me that the operation of ‘climbing’ a tower crane, in the sense in which that term was used by Mr. Williamson [sc. for Yarm] for the purposes of Issue 1, is ‘erection of any plant’ for the purposes of clause 13(c)(ii) of the CPA Conditions. While it is an operation subsequent to the initial erection of the crane, in my judgment the expression ‘where such plant requires to be completely erected on the site’ in clause 13(c)(ii) simply means ‘where plant, to be complete and usable, needs to be erected on site’. In other words, the distinction drawn by clause 13(c)(ii) is not between initial erection and any subsequent alteration of the structure of the plant, such as by increasing the height of a tower crane, but between operations which amount to putting up the plant, whether initially or by modification subsequently, and operations which do not.

  14. On this issue there are a number of disparate arguments to consider, but I may say at once that I disagree with the judge’s conclusion.

    Overall Structure of Clause 13

  15. In my judgment the learned judge’s conclusion pays insufficient regard to the overall structure of clause 13. The clause is headed "Hirer’s Responsibility for Loss and Damage." Clause 13(b) establishes what is plainly intended to be the general rule, namely that the hirer shall indemnify the owner against all claims arising out of the use of the plant during the hire period. Clause 13(c) then sets forth what in my view is no less plainly intended to be an exceptional provision, imposing liability upon the owner in any of five particular situations where damage loss or injury may come about. Overall clause 13(c) (at least, (i) – (iv)) establishes a temporal pattern for the incidence of the owner’s liability, as appears from the delineation of these situations:

    1. before delivery of any plant to the site, when the plant is being transported by the owners;

    2. when the plant is being erected on the site;

    3. when the plant is being dismantled after use prior to the removal from the site;

    4. when the plant is in the course of being transported by the owner after its removal from the site; and

    5. when the plant is in the course of transit to and from a site under its own power with a driver supplied by the owner.

  16. It is of course elementary that a contractual provision must be read in its context and the contract read as a whole. The terms of clause 13 of the CPA Conditions are surely no exception. They seem to me to chime with other provisions (clause 1(g) and clause 23(a)) which define the hire period as commencing when the plant leaves the owner’s depot and the enuring until it is received back in the depot. Taking, then, the whole of clause 13 together it seems to me that clause 13(c) is intended to impose potential liability on the owner at specific stages arising, in effect, at the beginning and at the end of the hire period: at the beginning when the plant is in transit, then being erected; at the end when the plant is being dismantled, then in transit after removal. (13(c)(v) is dealing with other exceptional positions not least, I apprehend, when the owner is moving the plant from one site to another under the same contract.) Those are the stages in the parties’ commercial relations at which, exceptionally, the risk is allocated to the owner rather than hirer. That approach seems to me not only to be consonant with the pattern of clause 13(c) as a matter of language, but also with the broad commercial reality. Counsel on both sides made submissions about commercial reality: it is an area in which, I think, the court must proceed with caution when called on to construe a standard form contract which is, and perhaps for years has been, deployed in many different commercial realities. However, I would go with Mr. Stewart this far. Hewden’s involvement in the whole undertaking at this new building at Canary Wharf was very much more modest than that of Yarm, which had a substantial contractual role. Given this was a large scale, complex building site, Yarm must have been in a better position to foresee and estimate the commercial effects of some major eventuality such as this collapse than would Hewden, whose only part, of course, was to supply cranes on hire. However, I acknowledge that this is perhaps a marginal consideration.

  17. It will be plain that this approach is greatly at odds with the contention, which Yarm must support, that clause 13(c)(ii) imposes a further liability on the owner: one which may arise in the middle of the hire period or at any time during its currency, when the plant may have been in situ for many weeks: a liability arising on account only of the crane’s being extended to a greater height, by "climbing". Indeed Mr. Williamson repudiated altogether the notion that clause 13(c) was essentially concerned with activities towards the beginning and towards the end of the hire period. Thus he did not accept that clause 13(c)(iii) applied only when plant was being dismantled before removal from the site at the end of the hire period. Nor did he accept that clause 13(c)(ii) applied only when plant was being erected at the beginning of the hire period. He contemplated a case in which a crane might be erected, then after some time dismantled, and then re-erected; and perhaps dismantled and re-erected again. His argument was that clause 13(c)(iii) would serially apply at each of these stages. He submitted that the phases respectively appearing in 13(c)(ii) and 13(c)(iii) "where such plant requires to be completely erected on the site" and "where plant requires to be dismantled after use prior to removal from site" were in neither sub-clause relevant to the provisions’ temporal application; rather each phrase served only to identify the kind of plant which was being referred to. Thus clause 13(c)(ii) applied only to plant of a kind which had to be entirely erected on the site, as opposed to plant which might wholly or partly be pre-erected. Likewise 13(c)(iii) applied only to plant of a kind which had to be dismantled on the site after it was used, as opposed to plant which could be dismantled after use elsewhere (notably, no doubt, at the owner’s premises).

  18. Now I would certainly accept – indeed I suggested it myself in the course of the argument – that the words in 13(c)(ii) "where such plant requires to be completely erected on site" serve to distinguish the plant being referred to from plant which could be pre-erected (in whole or in part) before being brought on site. But I would by no means accept that the purpose of this phrase and its analogue in 13(c)(iii) was only to specify the kind of plant to which these sub-clauses respectively applied. The reference is also to the occasions on which the sub-clause bites. The conjunction "where" must surely mean "in circumstances in which". If a mere qualification of the meaning "plant" was intended, I am clear that a different form of words would have been used (for example, "plant of a kind such that ....").

  19. At this stage I should with respect make it plain that I specifically disagree with the learned judge’s reasoning in paragraph 29 of his judgment (which I have set out) to the effect that clause 13(c)(ii) is drawing a distinction "not between initial erection and any subsequent alteration of the structure of the plant .... but between operations which amount to putting up the plant, whether initially or by modification subsequently, and operations which do not".

    • First, as it seems to me, it is confusing to suggest that clause 13(c)(ii) is concerned to draw a distinction of any kind: it merely delineates circumstances in which the owner will be liable.

    • Secondly, the expression "putting up the plant" (also used by the judge at paragraph 41) is a recourse to language not used in the contract itself, and which to my mind throws no light on how the contract is to be interpreted.

    In short there is nothing in these two expressions, respectively used in 13(c)(ii) and (iii), to tell against the clear force of the language of 13(c) taken as a whole, whose effect is to impose liability on the owner in limited circumstances on a temporal basis, that is (essentially) by reference to the beginning and end of the contract.

  20. In my judgment, moreover, the natural meaning of clause 13(c)(ii) also excludes the "climbing" operation from "erection". There is, I think, a risk of being seduced by the particular facts here. Something is erected when put up to its full height; and this crane had to be put up to a height beyond its maximum free-standing height; these processes might seem to be part and parcel of the same thing, erection. But it is surely important to have in mind that the facts here are but one instance of a myriad of possible instances in which the application of clause 13(c) might be in question. I do not think it fanciful to imagine a piece of plant from which, at certain stages in the building operation for which it is being hired, it is necessary to take out certain parts, with or without replacing them with others. There must be many states of affairs in which a piece of plant has to be adapted in some way as the work goes on. Instance by instance it will by no means be obvious, or even plausible, that such adaptations may be said to form part of the plant’s "erection"; indeed as a matter of language it may be obvious that they do not. "Climbing", as it seems to me, is precisely in the nature of an adaptation, and that I think is how it is to be regarded. It is not of a piece with "erection".

    "Scope of Works"

  21. The construction of 13(c)(ii) which I favour, moreover, is I think supported by other provisions in the contract to which our attention has been drawn. I would refer first to the "Scope of Works" document. At the outset it recites these words:

    Erect on site to pre-prepared foundations including provision of anchor assemblies, Tower cranes as specified, hire on an inclusively weekly rate, provide driver for each crane including relief driver to ensure continuous availability on the basis of 55 hr week, carry out climbing operations in accordance with site requirements. Dismantle cranes on completion of hire and remove from site.

    Here we find "erect" and "dismantle", and then "climbing operations", seemingly dealt with as distinct and separate functions to be performed by Hewden. It would of course be wrong to make too much of this; but this is a sophisticated contract, albeit one incorporating standard terms, and the "Scope of Works" document is in my view some indication that the parties intended "erection" and "climbing" to be treated for the purposes of the contract as different functions.

    Clause 5(a)

  22. There is next Mr. Stewart’s argument based on the terms of clause 5(a) of the CPA Conditions. For convenience I repeat the provision:

    Unless notification in writing to the contrary is received by the Owner from the Hirer in the case of plant supplied with an operator within four working days, and in the case of plant supplied without an operator within three working days, on the plant being delivered to the site, the plant shall be deemed to be in good order, save for either an inherent fault or a fault not ascertainable by reasonable examination, in accordance with the terms of the Contract and to the Hirer’s satisfaction, provided that where plant requires to be erected on site, the periods above stated shall be calculated from date of completed erection of plant. The Hirer shall be responsible for its safekeeping, use in a workmanlike manner within the Manufacturer’s rated capacity and return on the completion of the hire in equal good order (fair wear and tear excepted).

    The argument is that this clause demonstrates, or at the least very powerfully suggests, that "erection" cannot include "climbing" upon the contract’s proper interpretation, because if it did the time within which the hirer might reject the plant as not being in good order would be extended to four days after the last climb: that might be many months into the contract; indeed, theoretically at least the last climb might take place less than four days before the end of the hire period, in which case the plant would never be deemed to be in good order and would be liable to be rejected by the hirer throughout the period of hire. Accordingly Mr. Stewart submits that in clause 5(a) "erection" must refer to the stage when the plant is erected at the beginning of the hire period.

  23. The judge (paragraph 29, which I have set out in part) expressed the view that in clause 5(a), as in clause 13(c)(ii), "erection" meant simply "operations which amount to putting up the plant, whether initially or by modification subsequently". He said:

    It seems to me that that is also what the word ‘erection’ connotes in clause 5, so that there also the critical question is whether any particular operation is a putting up of the plant into the condition in which it is required after such assembly, or not. Thus construed clause 5 would have the sensible business effect that each time the structure of an item of plant is altered by the owner the hirer has a fresh opportunity to consider whether he is satisfied with the result of the modification to the plant as a whole.

    But on this approach I see no escape from the conclusion that in a case where "climbing" is to be done the period of inspection under clause 5(a) is extended until four days after the final climb and that applies to the whole crane, which might therefore be rejected for reasons having nothing to do with the climb. Mr. Williamson as I understood him accepted this, although he submitted that it would be very difficult on the facts for the hirer to reject the crane weeks or months after starting to use it for some reason having nothing whatever to do with a climb that had just taken place. In many sets of circumstances that may well be so. But the kinds of situation that might arise are infinitely variable, and the approach to clause 5(a) which Mr. Williamson is driven to adopt seems to me to deprive the provision of its plain purpose; that is, in my judgment, to close the book on any complaints about the crane (save for latent faults or defects) four days after it is first brought onto the site and erected. Mr. Williamson suggested another construction of the clause, though he did so (in my view rightly) with little enthusiasm. That was to the effect that the four days would run as it were serially, in relation to each section of the crane installed when the crane was climbed. But it is impossible in my view to get such a meaning out of the words used.

  24. Mr. Stewart acknowledged, as of course he was bound to do, that if consistently with his submission the four days ran from completion of the initial erection of the crane, they would have expired before any climbing was done; and so the extra sections would not be open to be rejected by the hirer within the four day period. However, he submitted that the hirer was not thereby left unprotected. Any fault in the new sections would not have been "ascertainable by reasonable examination", because (presumably) they would not have been on the site for the hirer to examine during the period in which the four days had been running. Thus it would be open to the hirer to reject them for any fault which might appear when they were brought onto the site, inserted by the climb, then put into use. That seems to me to be right.

  25. Accordingly in my judgment the terms of clause 5(a) lend powerful support to Hewden’s construction of clause 13(c)(ii) to the effect that "erection" does not include climbing. As I have indicated, I would accept that construction as being correct. I would therefore answer Issue 1 in the negative, in contrast to the judge.

    "Due to or arising"

  26. In the course of the hearing of the appeal a point emerged on the wording of clause 13(c) which had not surfaced before the judge. It will be recalled that the opening words of 13(c) include the following: ".... the owner shall accept liability for damage, loss or injury due to or arising – ". There are then to be found in (i) – (v) a series of phrases (in the case of (v), a clause) each of which refers to a period of time in which an event is taking place. Each, therefore, is apt as a matter of language to follow the word "arising" but by no means apt to follow the words "due to". If one considers the provision as it would read with only "due to", thus omitting the words "or arising", the result is ungrammatical, indeed nonsensical. Clause 13(c)(ii) would read:

    .... the Owner shall accept liability for damage loss or injury due to (ii) during the erection of any plant ....

    So far as the provision uses the term "arising", the reference must be to damage loss or injury arising during any of the periods of time specified in (i) to (v). It seems to me that that is perfectly clear on the language. So far as the provision uses the term "due to", I would suppose that the reference is intended to be to damage loss or injury caused by whatever is being done to the plant in each of the periods respectively specified at (i) to (v) (transportation, erection, dismantling). But to achieve that result in English which makes sense would require the clause to be so radically rewritten that for my part I have very considerable doubts as to the legitimacy of such an exercise.

  27. Various approaches to "due to" were suggested during the course of argument. I do not find it necessary to reach any concluded view as to what should be made of these words in clause 13(c), because for the purposes of the preliminary issues which the judge was deciding, and which are before us, they do not require to be considered. I mention these difficulties only because they were the focus of some discussion at the hearing, and it may be useful for the lawyers who might be engaged in drafting any revisions of the CPA Conditions to be alerted to this linguistic defect in 13(c)(ii).

    ISSUE 2:

    DISCUSSION AND CONCLUSION

  28. Issue 2 (like Issue 3) only arises if I am wrong on Issue 1. The question is, was the climbing operation of 21 May 2000 under the exclusive control of Hewden or its Agent? The question is of course engaged by the closing words of 13(c)(ii): "always provided that such erection is under the exclusive control of the Owner or his Agent".

  29. The judge held that for the purpose of this issue the stage of "erection" which involved climbing (on his approach Issue 1) did not also involve fixing the ties (judgment, paragraph 46.) He concluded that on the undisputed facts it was Hewden’s people who determined how the climbing operation should be undertaken, and so Issue 2 fell to be answered in the affirmative. I should say at once that if one looks at the actual climbing operation in isolation from the preparatory works including the fixing of the ties, subject to certain further submissions of Mr. Stewart (to which I will come) there is really no contest but that Hewden’s operatives were exclusively involved. The judge so found at paragraph 25, and I see not the slightest justification for going behind that finding.

  30. The judge’s conclusion, then, depended crucially on his treating the installation of the ties (and other preparatory work) as something separate and apart from the climb for the purposes of the application of clause 13(c)(ii). This is what he said (paragraph 41):

    .... it seems to me that the installation of ties between the existing part of a tower crane and an adjacent structure to stabilise the crane in advance of it receiving the insertion of further mast sections and with a view to avoiding the insertion of those sections destabilising the crane is not part of the ‘erection’ of the heightened crane, while the addition of the mast sections to increase the height of the crane is ‘erection’ of the taller crane. This analysis seems to correspond with that of Hewden itself, which, as I have pointed out, distinguished in preparing its method statements between the operation of inserting ties and operation of climbing’. It also makes commercial sense in the context of the CPA Conditions, for the intention of clause 13(c)(ii) must have been that the owner should bear the risk of any operation undertaken by its own staff using its own equipment on it own plant in accordance with its own judgment as to what to do and how.

  31. If, however, the erection, so far as it consisted in climbing, included fixing the ties and other preparatory works, then there are in my judgment formidable difficulties facing Yarm on Issue 2. I accept, as was submitted in the course of argument, that A might have exclusive control over an operation even though employees of B were doing some of the work in question. That would arise if B’s employees were subject entirely to the orders of A as to how the work was to be done. But here, Yarm’s design engineer designed the ties; the location of the ties was subject, even if only on a fine tuning basis, to Yarm’s agreement; Yarm fitted a temporary bracing system from the ties before Hewden’s team came on site; Yarm and Hewden’s operatives together fitted the collar around the frame, to which Yarm’s operatives then fitted the telescopic ties. Yarm tac welded, then finally welded the ties.

  32. In my judgment these various operations were integral to the execution of the climb, and cannot sensibly be separated out from it for the purposes of the application of clause 13(c)(ii). Mr. Williamson submitted that we should be very slow to differ from the judge on a factual matter of this kind. He cited Skanska Construction UK Ltd [2002] EWCA Civ (18 December 2002) in which Lawrence Collins J referred (paragraphs 7 and 8 of his judgment) to certain characteristics of decisions of the Technology and Construction Court

    which affect the readiness of the Court of Appeal to reconsider them on appeal. First, the findings of fact often fall within an area of specialist expertise, where the evidence is of a technical nature and given by experienced experts, and which is evidence of a kind which judges of the Technology and Construction Court are particularly well placed to assess. Second, the conclusions of fact will frequently involve an assessment or evaluation of a number of different factors which have to be weighed against each other, which is often a matter of degree. Third, the decisions may deal with factual minutiae not easily susceptible of reconsideration on appeal. Fourth, the judgments will frequently be written on the basis of assumed knowledge of the detail by the parties and their advisers, and will not address a wider audience, with the consequence that the underlying reasoning may not always be readily apparent or fully articulated.

    8. Consequently the recent pronouncements of this Court on appeals against findings of fact apply with particular force to the decisions of the Technology and Construction Court. In particular this Court will reluctant to interfere with a trial judge, not only on findings of primary fact based on the credibility or reliability of witnesses, but also where conclusions of fact involve an assessment of a number of different factors which have to be weighed against each other and involve an evaluation of the facts.

    Latham and Thorpe LJJ agreed with Lawrence Collins J, adding no reasoning of their own. I too, if I may say so, would entirely endorse this passage from his judgment. But the inhibitions there described do not seem to me to apply at all to this question whether the preparatory work (particularly the fixing of the ties) should be regarded as integral to the climb. The facts are not especially arcane, and the answer to the question does not depend on a judgment being made as to the quality of specialist expert evidence. One is looking at the whole factual picture. For my part I cannot see how it can be right to separate off the preparatory work from the actual climb, and categorise the latter as part of the "erection" but not the former. It is to be noted, moreover, that the ties were not merely temporary fixtures put on when the climb was being done. They remained afterwards, performing the extremely important function of facilitating the stability of the crane in its heightened condition. They were essential to the crane’s use as thus erected.

  33. On the footing that the preparatory work, including fixing the ties, falls to be treated as part of the climb, then in my judgment that part of the erection (and therefore the erection overall) was not in Hewden’s exclusive control. The parts played by Yarm’s operatives as I have described them did not merely consist in the execution of Hewden’s orders. They involved the exercise of discretion and skill by Yarm’s people themselves.

  34. Accordingly, I would respectfully disagree with the judge on Issue 2. Mr. Stewart had some further arguments on this part of the case which, however, I would not accept. I deal with them briefly.

    Clause 8

  35. It is I understand common ground that Hewden supplied a driver with TC3, and he was operating the crane when it collapsed. Mr. Stewart’s submission is that by force of the first sentence of clause 8 of the CPA Conditions, the driver must be treated as having been in effect an employee of Yarm. I repeat the relevant parts of the clause:

    When a driver or operator is supplied by the Owner with the plant, the Owner shall supply a person competent in operating the plant and such person shall be under the direction and control of the Hirer. Such drivers or operators shall for all purposes in connection with their employment in the working of the plant be regarded as the servants or agents of the Hirer (but without prejudice to any the provisions of Clause 13) who alone shall be responsible for all claims arising in connection with the operation of the plant by the said drivers or operators ....

    I do not think that Mr. Stewart can get what he needs for this argument out of the first sentence of clause 8. In agreement with the judge (paragraph 42) I consider that the provision merely entitles the hirer to give directions to the owner’s driver. The driver is only under the hirer’s "direction and control" to the extent that the hirer chooses to do so. There is no suggestion that Yarm gave any such directions in this case. As for the second sentence of the clause, that is expressed to be without prejudice to any of the provisions of clause 13. It cannot assist Mr. Stewart.

    Other Contractual Rights of Yarm

  36. Mr. Stewart refers to paragraph 17.3 of "Site Safety Plan Section 17" as entitling Yarm to reject the method statement put forward by Hewden, and also to paragraph 4.2 of "Health and Safety Information for Contractors" as entitling Yarm to stop any erection of the plant on safety grounds. He says that these features of the contractual relationship between the parties are themselves, taken together or separately, sufficient to deprive Hewden of "exclusive control" of the climbing operations. I do not agree. The fact that A has a right to interfere with B’s activity does not of itself mean that B lacks exclusive control over that activity, so long as A does not exercise the right. A contract of employment might provide that the employee have "exclusive control" over one of the branches of the employer’s business; the fact that the employer retains rights to dismiss or transfer the employee does not contradict his possession of that exclusive control while those rights are not exercised.

  37. However as I have said, for reasons given earlier I would answer Issue 2 in the negative, in contrast to the judge.

    ISSUE 3

  38. This refers to the other Hewden operatives, aside from the driver who was involved in the climb on 21 May 2000. Unless Mr. Stewart’s submission relating to the driver succeeds by force of Clause 8 of the CPA Conditions, there is nothing in this issue. For reasons I have already given the argument relating to the driver in my judgment fails. The first sentence of clause 8 cannot then avail Mr. Stewart in relation to the other operatives. It is in any event doubtful whether they are covered by that sentence at all. So far as Issue 3 refers to the persons who undertook the climb itself (as opposed to the preparatory work), I would answer it in the negative, in common with the judge.

    ISSUE 4

  39. It follows from the foregoing that in my view Hewden is entitled to be indemnified by Yarm in relation to the collapse of TC3 pursuant to clause 13(b) of the CPA Conditions.

    ISSUE 5:

    DISCUSSION AND CONCLUSION

  40. This issue arises on the cross notice. Mr. Williamson submits that clause 11 of the KCB terms was an express condition of the contract, printed on the back of the Order. He says that by contrast the CPA Conditions were merely incorporated by reference. Accordingly, clause 11 should prevail over clause 13 of the CPA Conditions. Reliance is placed on what was said by this court in Modern Building Wales Ltd [1975] 1 WLR 1281:

    Where parties by an agreement import the terms of some other documents as part of their agreement, those terms must be imported in their entirety .... but subject to this: if any of the imported terms in any way conflicts with the expressly agreed terms, the latter must prevail over what would otherwise be imported ....

  41. In common with the judge I would reject this argument.

    • First, while it is true that the CPA Conditions were incorporated by reference, that was done by and on the face of clause 16 of the same KCB Terms, set out on the back of the Order, as included clause 11; and these were Yarm’s own terms. 

    • Secondly, the two sets of conditions can be read consistently if the clause 11 indemnity is taken to apply to the extent that the parties have not agreed otherwise, and such consistency is to be obtained if possible: the learned judge (paragraph 52) cited the speech of Lord Goff in Yien Yiah Commercial Bank [1989] 2 HKLR 639. I may perhaps be forgiven if I do not set out the passage again.

    • Thirdly, such a result is further supported by principle, since whereas the clause 11 indemnity is perfectly general, clause 13 is dealing with the distribution of contractual responsibility in the specific context of the hiring of plant; and the rule, crisply expressed in the Latin maxim Generalia non specialibus derogant, is that the general is taken to give way to the specific.

    CONCLUSION OVERALL

  42. For reasons given in the foregoing discussion of Issues 1 and 2, I would allow the appeal, and in light of what I have said on Issue 5 I would dismiss the cross-appeal.

    Sir Martin Nourse

  43. Having had the advantage of reading in draft the judgment of Lord Justice Laws, I gratefully adopt, and need not repeat, his introduction to the appeal, his recital of the material provisions of the contract between Yarm and Hewden and his statements of the issues and the facts.

    ISSUE 1

  44. In my opinion when tower crane TC3 was being climbed on 21 May 2000 the operation fell within the meaning of "erection of any plant" in clause 13(c)(ii) of the CPA Model Conditions. My reasoning is as follows.

  45. I agree with Mr. Stewart, Q.C., for Hewden, that clause 13 of the Conditions headed "Hirer’s responsibility for loss and damage" is an allocation of risk clause, which, by sub-clause (b), establishes a general rule that the hirer shall indemnify the owner against all claims arising out of the use of the plant during the hire period. Sub-clause (c) is an exception to that general rule, which, so far as directly material, provides:

    Notwithstanding the above the Owner shall accept liability for damage, loss or injury due to or arising ....

    (ii)

    during the erection of any plant, where such plant requires to be completely erected on the site, always provided that such erection is under the exclusive control of the Owner or his Agent.

    It is not in dispute that the initial putting up of the crane in its free-standing state was an erection of plant within sub-clause (c)(ii). The question is whether the same is true of the fitting of the further sections of the mast which were added on each successive climbing operation.

  46. The argument has proceeded throughout on the footing that there is only one item of plant to be considered, namely the crane in its initial state or as extended by each successive climbing operation. This has led to difficulties in the construction and application of clause 13(c)(ii) which have been discussed by Lord Justice Laws. Being impressed by those difficulties, I would suggest an altogether simpler approach by which they are largely avoided.

  47. By clause 1(c) of the Conditions the expression "Plant" is defined to cover "all classes of plant, machinery, equipment and accessories therefor which the Owner agrees to hire to the Hirer". Accepting that the crane in its initial state was the main item of plant, I do not see why the added sections of the mast, each of them 4.5 metres in length, should not also be regarded as coming within the definition, either as other items of plant pure and simple or as accessories for the crane in its initial state. Clearly, they required "to be completely erected on the site" within clause 13(c)(ii).

  48. I am conscious that the approach I have suggested is a novel one which, although it was put to Mr. Stewart in argument before us, was not adopted by Mr. Williamson, Q.C., for Yarm. It may well be that there is an objection to it which, because there was no relevant debate in argument, has not been identified. However, even if the approach suggested is unsound, I would prefer the view of Lord Justice Pill, whose judgment I have also had the advantage of reading in draft, to that of Lord Justice Laws.

  49. I would therefore affirm the judge’s decision on Issue 1 and answer it in the affirmative.

    ISSUE 2

  50. In my opinion when tower crane TC3 was being climbed on 21st May 2000 the operation was "under the exclusive control of" Hewden for the purposes of the proviso to clause 13)(c)(ii) of the Conditions.

  51. On this issue I agree with the reasoning of Lord Justice Pill and Judge Seymour in the court below. The first step is to ascertain the facts on which the question depends. These appear from the evidence of Mr. Soni and Mr. Rumbles of Yarm as set out by Lord Justice Pill. The crucial passages in their evidence are as follows. Mr. Soni said:

    After Hewdens’ personnel were satisfied that the crane was balanced they would call upon YRL’s welders to weld the ties in. YRL would normally weld these overnight on the Friday so that the crane would be ready for Hewdens to climb on the Saturday morning .... On the Saturday morning Hewdens would begin to climb the crane .... Climbing the crane is typically described as a 2 day operation. It usually would take 1 and a half days to climb the crane and half a day to test it. The whole operation should be completed by the Sunday night .... I can confirm that at all times during the course of climbing the tower crane came under the exclusive control of Hewdens’ Erection Team until it was formally handed back to YRL after load testing.

    Mr. Rumbles said:

    Hewdens would instruct our operatives to tac weld the tie. Once Hewdens were satisfied with the verticality of the crane YRL’s operatives would complete the welding of the ties. On completion of the welding an OIS Inspector would carry out an MPI test on the weld and only at that point, assuming that the weld had been approved would I or one of my operatives advise Hewdens that our work was complete. YRL would then hand over the tower crane to Hewdens’ exclusive control for them to commence climbing .... The crane would only be handed back once the climbing operation had been completed and the crane had been load tested and signed off by Hewdens’ Erection Supervisor, Mike Whittard.

  52. That evidence establishes that once Yarm had completed the welding of the ties, normally overnight on the Friday, and the ties had been tested the crane was handed over by Yarm "to Hewdens’ exclusive control for them to commence climbing". Accordingly, from the time when climbing started, normally on the Saturday morning, the operation came under the exclusive control of Hewden and remained under its control until the crane was handed back, normally on the Sunday, after completion of the climbing, load testing and signing off. The climbing was a separate stage in the operation.

  53. It is said that the climbing was only one stage in the "erection" for the purposes of the proviso to clause 13(c)(ii), the other stage or stages being the welding of the ties and the other preparatory work. While that no doubt is true in a broad sense, I do not think it decisive in the construction and application of the proviso. What clause 13(c) is directed to is damage, loss or injury arising during the erection of any plant. The damage loss and injury in this case arose, not during the welding of the ties or the other preparatory work, but during climbing. In my view where the erection consists of more than one stage the words "such erection" refer to the stage during which the damage, loss or injury arises. It follows that on Sunday 21st May 2000 the erection was under the exclusive control of Hewden for the purposes of the proviso to clause 13(c)(ii).

  54. I would therefore affirm the judge’s decision on Issue 2 and answer it in the affirmative.

    ISSUES 3, 4 & 5

  55. For the reasons given by Lord Justice Laws, I would answer Issues 3 and 5 in the negative. I would also answer Issue 4 in the negative.

    CONCLUSION

  56. In agreement with Lord Justice Pill, I would dismiss both appeal and cross-appeal.

    Lord Justice Pill

    ISSUE 1

  57. I gratefully adopt the summary of the facts by Laws LJ, though I will make reference to the evidence before the judge. I would uphold the conclusion of the judge on Issue 1, adopting the short route taken by Sir Martin Nourse or, if necessary, the longer route taken by the judge.

  58. Clause 13 is an allocation of risks clause in the CPA model conditions for the hiring of plant (September 1979 Edition) which were intended to apply in contracts covering a wide range both of plant and of circumstances in which plant is used. The guiding principle and purpose of the clause appears to me to be that the general responsibility of the hirer is displaced in circumstances where the operation concerned is the responsibility of the owner. Stress has been placed by Mr. Stewart QC, for the owner, on the comparatively modest part played by the owner in the large building operation at Canary Wharf as compared with that of the hirer. I do not consider that to be a significant consideration upon the issues before the Court when it is realised, as inevitably it must be, that Clause 13 does impose a substantial responsibility on the owner in some circumstances. The issue is not about the existence of the responsibility but about the circumstances in which it is borne.

  59. It is common ground that it will be only in a minority of those cases in which the conditions apply that the present issues will arise. They arise because, the proposed building being a very tall one, the owner has responsibilities on site which involve not only putting the crane into location in a usable condition at the start of the contract of hire but also conducting the climbing operations described by Laws LJ in his judgment. I respectfully disagree with the suggestion of Laws LJ, in Paragraph 16 of his judgment, that the only part played by the owner was to supply cranes on hire. The "Scope of Works" document required the owner to erect the crane TC3 on site, to "carry out climbing operations in accordance with site requirements" and to "dismantle cranes on completion of hire and remove from site". A contractual price for each item was specified. The Clause should also be read against a background that in erection and dismantling it is the owner’s expertise which can be expected to be relied on.

  60. The obligations on the owner in Clause 13(c)(i) to (iv) are set out on a temporal basis, as one would expect because the operations would normally occur in the order stated, that is, delivery, erection, dismantling and removal. Because the conditions are intended to apply in a wide range of situations, however, that format should not distract the Court from applying the intended principle and purpose. There will be cases, and in my judgment the present case is one, in which responsibilities arise during the currency of the hiring contract which in this case was due to last 55 weeks. I have no difficulty in construing the words in Clause 13(c)(ii) " where such plant requires to be completely erected on the site" as defining the plant which is covered by the Clause. It does not in my judgment, on facts such as the present, limit the words "the erection" and "dismantling" in a temporal way.

  61. I reach the conclusion, as did the judge, that the climbing operation described by Laws LJ, and by the judge, comes within the meaning of "erection" in Clause 13(c)(ii). It has all the hallmarks of erection as that word is commonly used. It cannot in my judgment be said that the erection operation is completed by the initial erection when up to 27m of plant are later to be added to the height of the crane by the climbing operation. To hold that the effect of Clause 13 is to impose liability on the owner only at the beginning and end of the contract is in my judgment to have insufficient regard to the generality of the word "erection" in a context in which many different schemes of work are contemplated.

  62. I am not deterred from that conclusion by the nature of the inspection protection given to the hirer in Clause 5. I accept the judge’s approach to this question, cited by Laws LJ at Paragraph 23 of his judgment. That conclusion does not deprive the hirer of protection with respect to work done on site by the owner as would the "closed book" approach which Laws LJ holds to follow from the conditions. Such protection is in my view contemplated by the conditions. I would not decide the question whether the judge’s approach or the serial approach mentioned by Laws LJ at Paragraph 23, by reference to the submissions of Mr. Williamson QC, for the hirer, is to be preferred.

    ISSUE 2

  63. In paragraphs 3 and 10 of his judgment, Laws LJ has described the manner in which the climbing operation was conducted. I would add short passages from the evidence of Mr. Raj Soni, Deputy Project Director for the building project, and Mr. Mark Rumbles, Site Supervisor, which, as Laws LJ has pointed out, was accepted by the judge. They were employed by the hirers. Mr. Soni described the procedure by which the crane mast was secured to the building by means of a tie. Typically, he said, the owner’s Erection Team would come on site on the Friday before the weekend when the crane was to be climbed. The team would erect a tie-collar at the appropriate crane tie level and then fit the climbing frame above the column. He continued:

    Once the climbing frame was fitted, Hewdens install the three ‘telescopic’ crane ties. One end of the tie was pinned to the collar, whilst the other was pinned to the bracing system in the building. The ties were telescopic to allow for any adjustments (in the horizontal plain) to be made during the vertical alignment of the crane mast. After the tie legs were pinned, Hewdens would balance the crane using a 1 metre spirit level. After Hewdens’ personnel were satisfied that the crane was balanced they would call upon YRL’s welders to weld the ties in. YRL would normally weld these overnight on the Friday so that the crane would be ready for Hewdens to climb on the Saturday morning. It takes some 3-4 hours to weld the tie and then YRL’s independent Non-destructive Testing ("NDT") inspector would test the welding ....

  64. Later Mr. Soni stated:

    On the Saturday morning Hewdens would begin to climb the crane. It is Hewdens’ responsibility to decide whether the wind speeds were sufficiently low to climb the crane. Climbing the crane is typically described as a 2 day operation. It usually would take one and a half days to climb the crane and the half day to test it. The whole operation should be completed by the Sunday night so the crane is ready for use the following Monday morning. If Hewdens encountered any technical problems or the weather was against them, the whole process could take longer and on occasions the crane was not ready for use on Monday morning.

  65. Mr. Soni added:

    I can confirm that at all times during the course of climbing the tower crane came under the exclusive control of Hewdens’ erection team until it was formally handed back to YRL after load testing

  66. Mr. Rumbles stated:

    The timing for climbing of the frame was generally organised between Raj Soni and either Pat Yates or Sid Appleyard at Hewdens, and was based upon the progress of the works. The procedure for hand over of the tower crane, so as to enable climbing operations to commence was always the same. Essentially I would be asked by Raj Soni to prepare for installation of all the associated temporary works, which would include diagonal and horizontal bracing in the area designated by Hewdens and would await the arrival of their specialist Erection Team who would come to site on the Friday before the weekend during which the climbing operation was to be executed.

    Upon arrival Hewdens’ Erection Team would work with YRL’s operatives could then attach the horizontal telescopic ties. These were then adjusted after Hewdens had balanced the crane. Hewdens would instruct our operatives to tac weld the tie. Once Hewdens were satisfied with the verticality of the crane YRL’s operatives would complete the welding of the ties. On completion of the welding an O.I.S. Inspector would carry out an MPOI test on the weld and only at that point, assuming that the weld had been approved would I or one of my operatives advise Hewdens that our work was complete. YRL would then handover the tower crane to Hewdens’ exclusive control for them to commence climbing.

    During climbing the tower cranes were not use and Hewdens’ driver would only take instructions from the Erection Supervisor. The crane would only be handed back once the climbing operation had been completed and the crane had been load tested and signed off by Hewdens’ Erection Supervisor, Mike Whittard. I would generally be notified of this fact by Mike Whittard himself or through Bill Allison, Hewdens’ Crane Co-ordinator. Only then would YRL be able to re-commence use of the tower crane.

  67. In my judgment, the judge was correct to hold, in that paragraph of his judgment cited Laws LJ at Paragraph 30, that the climbing operation was under the exclusive control of the owner. The judge was entitled to reach that conclusion on the evidence and he did so. Having regard to the contractual purpose, as I find it to be, the climbing operation can and should be treated as separate from the installation of the ties and other preparatory work which were done jointly by owner and hirer, though all may come within the definition of erection. That appears to me to be the proper and necessary conclusion to be drawn from the evidence of Mr. Rumbles, who spoke of the hirer’s work being complete and handing over the tower crane to the owner’s exclusive control for him to commence climbing, and then of a hand-back when the climbing operation had been completed. Mr. Soni’s evidence was to the same effect.

  68. On the evidence, I do not share the difficulty which Laws LJ has in separating the climbing operation from the preparatory work in this respect. Necessary and important though the preparatory work was, it was, on the evidence, preliminary and preparatory to what was a substantial two day operation under the exclusive control of the owners. Whether or not the work done jointly was erection of plant, there is no reason why it should not be separated from the climbing operation, for the purposes of the application of Clause 13(c)(ii), and, given the purpose of Clause 13(c), good reason why it should.

  69. It is not necessary to determine the question whether the preparatory work was erection, within the meaning of that word in the Clause. Two conditions must be satisfied by the hirer to transfer responsibility. The first is that the work is work of erection. For reasons given earlier in this judgment the climbing operation was such work. The second is that it is under the exclusive control of the owner. The climbing operation or, if the preparatory work is to be treated as a part of the climbing operation, then the relevant part of the climbing operation, was under the exclusive control of the Owner. Since the conditions are satisfied, responsibility rests with the owner.

    OTHER ISSUES

  70. I agree with Laws LJ on the other issues in the case (save for Issue 4 where the result follows from other Issues). I should wish expressly to agree with his conclusion that the hirer’s other powers and responsibilities on site, such as those in relation to health and safety, and the right to reject method statements, do not prevent the climbing operation from being under the exclusive control of the owner. While the operation is in progress, and is permitted to be in progress, it is, subject to considerations upon which conclusions have already been expressed, under the exclusive control of the owner. Nor do the provision of Clause 8 assist the owner, for the reasons given by the judge and by Laws LJ.

  71. During argument, I raised the question of the presence of the words "due to" in Clause 13(c). Its presence gives rise to what Laws LJ has rightly described as a linguistic defect. The parties agree that the presence of the words has no bearing upon the issues now between them. It is possible that the draftsman had in mind a need to establish a causative link between the loss mentioned in Clause 13(c) and the operations in sub-clauses (ii) and (iii). I doubt whether it achieves that object but express no view as to the effect of the words.

  72. I would dismiss the appeal and the cross-appeal


Cases

Skanska Construction UK Ltd [2002] EWCA Civ (18 December 2002); Modern Building Wales Ltd [1975] 1 WLR 1281; Yien Yiah Commercial Bank [1989] 2 HKLR 639

Representations

Mr. Roger Stewart QC (instructed by Mayer Brown Rowe & Maw) for the Appellant

Mr. Adrian Williamson QC (instructed by Walker Morris) for the Respondent


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