The plaintiff’s husband had been killed as the result of the driver’s negligence in operating an excavator which had been hired by the second defendants for work at their quarry. The contract was subject to the CPA (Contractors’ Plant Association conditions of hire) terms which provided that drivers be regarded as the servants or agents of the hirer who, alone, should be responsible for all claims arising in connection with the operation of the plant.
Held: Terms and conditions may be incorporated by reference to specific terms and conditions in common use in the relevant industry. Condition 8 was not caught by UCTA 1977 and was effective to transfer liability to the hirers. Section 2(1) had no effect because liability was not excluded towards the victim of the negligent act, Mr Thompson. It only excluded liability towards T Lohan themselves. It transferred liability.
Fox LJ said: ‘As to the position of the two individuals principally concerned, Mr. Pinder was the quarry manager of the third party, and Mr. Danby was a director of Lohan. Mr. Pinder had previously hired from Lohan and knew that Lohan traded on the C.P.A. model terms – and the judge so found.’, ‘As to the position of the two individuals principally concerned, Mr. Pinder was the quarry manager of the third party, and Mr. Danby was a director of Lohan. Mr. Pinder had previously hired from Lohan and knew that Lohan traded on the C.P.A. model terms – and the judge so found.’ and of the CPA agreement: ‘The purpose of clause 8 was that, as between Lohan and the third party, Mr Hill should be regarded as the servant of the third party, who would be liable for his negligence accordingly. In my view, therefore, clause 8 is effective, at common law, as between the parties according to its tenor.’
Citations:
[1987] 1 WLR 649, [1987] 2 All ER 631
Statutes:
Unfair Contract Terms Act 1977
Jurisdiction:
England and Wales
Contract, Personal Injury
Updated: 09 May 2022; Ref: scu.595469
