Some of the rather more surreal extremes of construction law are demonstrated by the case of Yarm Road v Hewden Tower Cranes (2002). On 21 May 2000 a Wolff WK 320BF Luffing Jib Electric Powered Tower Crane, being used for the construction of the new HSBC headquarters building at Canary Wharf, collapsed. The collapse occurred during an exercise known as 'climbing' when the height of the crane was increased by adding new sections to the tower. This operation is relatively rare in the UK and necessary only for the construction of very tall buildings. Usually tower cranes are assembled to their full desired height when first taken to site. With a very tall building, however, the crane requires support from the structure under construction as the height of the crane is increased.
The crane was hired by the claimant, then known as Kvaerner Cleveland Bridge (KCB), from the Defendant, Hewden, under the Construction Plant-hire Association's Model Conditions for Hiring of Plant (the CPA conditions). The CPA conditions stated that plant owners could provide plant together with a competent driver or operator who would then be regarded as working for the plant hirer under its instruction. The plant hirer would remain responsible for these operatives and for any loss or damage they caused, either to the plant itself or by the plant on hire during its operation.
This allocation of liability was subject to an important proviso, namely that the plant owner would retain responsibility for any damage caused while the plant was being erected on site under the owner's exclusive control.
In May 2000, the crane was to be 'climbed' for the fourth time since its erection by Hewden's specialist team, consisting of six experienced people, all of whom had attended the site before. Preparation for the process began one Friday morning and continued the next day, but was delayed by high winds. By Sunday lunchtime, three mast sections remained to be installed when KCB's site supervisor left site. The crane collapsed later, causing loss of life and injury to members of Hewden's team. The cause of the collapse is still the subject of a Health and Safety Executive inquiry, and not known.
As a result of the collapse, work on site was delayed. KCB took its claim for consequential losses totalling some £8 million to the Technology and Construction Court, alleging that Hewden was liable because the damage was caused 'during the erection'of the crane.
Hewden denied liability on the basis that 'erection'meant initial assembly on site. Subsequent modification of plant, such as the climbing of a crane, did not fall within the exception to the CPA conditions. Thus, liability for the financial consequences of this catastrophic collapse turned upon the dry terminology of the small print and the meaning of the word 'erection'.
The judge accepted that the CPA conditions, which applied to all sorts of plant and not just tower cranes, did not expressly mention 'climbing' at all. Could the climbing exercise be described as 'erection', of plant, or was it 'operation' of plant? In grappling with the distinction, the judge was referred to various dictionary definitions of the word 'erection' not all of which he found particularly helpful in the required context.
Ultimately, he concluded that the operation of climbing a tower crane fell within the exception to the CPA conditions. The distinction to be drawn by the exception was not between the initial erection and any subsequent alteration of the structure of the plant - such as increasing the height of a crane - but between operations which amounted to putting up the plant, whether initially or by subsequent modification, and those that did not.
The judge emphasised that the climbing operation was undertaken exclusively by Hewden's men using their own expertise in accordance with a procedure of their own devising. As such they had 'exclusive control' of it as envisaged by the CPA conditions.
In so saying, he acknowledged that in the real world, no one is ever in absolute control of anything. But the undisputed facts led to the conclusion that it was Hewden that determined how the operation was to be undertaken and was therefore liable for its consequences.