(i) Whether the climbing operation fell within the meaning of "erection of any plant" in sub-clause 13(c)(ii) relied upon by Yarm;
(ii) Whether the climbing operation was under the exclusive control of Hewden or its agents;
(iii) Whether the individuals who undertook the climbing operation were not under the direction and control of Yarm for the purposes of Clause 8;
(iv) Whether Hewden was entitled to be indemnified by Yarm in relation to the tower crane's collapse pursuant to Clause 8 or Clause 13(b); and
(v) Whether Clause 11 of Yarm's standard terms and conditions prevailed over the terms of the Model Conditions of Plant Hire.
By a majority verdict only, the Court of Appeal decided that the climbing operation was "erection of plant", and that it was under the exclusive control of the owner of the tower crane, i.e. Hewden, as it had to be treated separately from other preparatory work done jointly by the owner and the hirer. Hewden were therefore liable to Yarm for the crane's collapse under the Model of Conditions of Plant Hire, and the fact that these conditions prevailed over Yarm's standard terms and conditions did not therefore enable them to escape liability.
*Full case details
Yarm Road Limited (1) Cleveland Bridge UK Limited (2) vs Hewden Tower Cranes Limited (2003), 31 July 2003, Court of Appeal, Civil Division, the Majority Judgment of Sir Martin Norse and Pill LJ
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The majority of the Court of Appeal agreed with the trial judge that the "erection" of a tower crane was not limited to the initial installation of the crane on site, and that it could include increasing the height of the crane by way of a "climbing" operation. Sir Martin Nourse suggested that the long additional sections of crane added during the climbing process fell individually within the contractual definition of "Plant" in clause 1(c) of the Model Conditions of Plant Hire, but both he and Lord Justice Pill agreed with the trial judge's view that the apparent qualification in clause 13(c)(ii) "where such plant requires to be completely erected on site" means "where plant, to be complete and usable, needs to be erected on site". The majority of the Court of Appeal also agreed that the actual "climbing" operation could be seen as a separate operation from the works which were preparatory to it, and that provided the actual "climbing" operation was within the exclusive control of the owner of the crane, the fact that the works preparatory to it were carried out in collaboration with the hirer did not mean that it was caught by the exception in clause 13(c)(ii) that allowed the owner to escape liability. The court expressed the view that "in erection and dismantling it is the owner's expertise which can be expected to be relied upon".