Jose v MacSalvors Plant Hire Ltd [2009] EWCA Civ 1329

The judgment of the UK Court of Appeal in this case demonstrates a robust application of the Alderslade (1) principle of contract law. The case also illustrates the need for careful drafting of contractual clauses, particularly in relation to indemnities and limitation of liability and emphasises the importance of reviewing standard form contracts in detail before using them in any transaction.

The background to this case is that a crane driver, supplied with the crane by the crane owner, brought a claim for damages after he sustained injuries from a fall while preparing the crane for use at the hirer’s workplace. The crane owner then brought proceedings against the hirer claiming an indemnity under the Construction Plant Hire Association’s Model Conditions for Plant Hire 2001, with Crane Supplementary Conditions (the “CPA Model Conditions”) which governed the hiring of the crane. The CPA Model Conditions are widely used in the UK construction industry.

Clause 8 of the CPA Model Conditions provides that when a driver is supplied by the owner with the plant, the hirer shall be responsible for all claims arising in connection with the operation of the plant by the said driver. Clause 13 provides that the hirer shall 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.

The Court of Appeal held that:

  1. Clause 8 did not contemplate making the hirer liable for the owner’s negligence. Clause 8 was intended only to make the hirer liable for claims brought by third parties due to the crane driver’s negligence; and
  2. Clause 13 was subject to the Alderslade principle. The Alderslade principle provides that for an exclusion of liability provision to be wide enough to exclude liability for negligence, it must use clear wording to that effect. In the absence of express wording, the court must decide whether the wording is wide enough and, if there is any doubt, the court should hold that negligence is not excluded.

The Court of Appeal stated that there was binding authority (2) which provided that Clause 13 was subject to the Alderslade principle and that it did not satisfy the test (i.e. there was no express reference to negligence in the clause and the words used were not wide enough, in their ordinary meaning, to cover negligence). It was held, therefore, that the crane owner could not rely on the indemnity in respect of its own negligence.

  1. Alderslade v Hendon Laundry Ltd [1945] KB 189
  2. E Scott (Plant Hire) Ltd v British Waterways Board (unreported).