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Posted By Gwahir
Hi Guys,
In need of some legal assistance, we buy, produce, ship to site, install and refurbish certain pieces of equipment; these pieces of equipment are considered ours at all times, despite being in customers premises all over the country. They are heavily logoed with our corporate brand, we have out sourced the refurbishment part of the operation to a contractor, we control all aspects of the operation, apart from the actual refurb part, we say when, how, where and to what spec the work is done, we even dictate to what customers they send the refurbished equipment to. My question is if they have an accident on their site whilst working on our equipment who will be ultimately responsible. I have read all the case law, i.e. Garrard v Southey 1952, Denham v Midland Employers, Mersey Docks v Harbour Board, Lee Ting Sang v Chung Chi – Keung and Lane v Shire Roofing but still confused… HELP PLEASE.
Graham
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Posted By Sean Fraser
Not really sure, but thinking out aloud . . .
From what you say, would this analogy apply? You are a car hire company. You have a lease deal with a major client. You provide the vehicle, and the servicing as well as insurance cover and MOT. In effect, everything to do with the operational aspect of the vehicle. However, you don't provide the driver. You expect (even put in the lease terms) that only licensed drivers over a certain age can use the vehicles.
The client then has a crash.
Who would be responsible? If the cause was mechanical failure, the hire company would be (assuming the failure was not due to mis-use). If the cause was operator failure, the client.
This might not be the best analogy but it was how I was looking at it. Obviously it all depends on the level of control you have over operator training AND allocation AND supervision. There are also the risk assessment findings.
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Posted By Raymond Rapp
A complex set of relationships you have described. However, primary legislation deals with all those different scenarios. Therefore I would advise you to adopt a altruistic approach. For example, in the event of a prosecution the liability is normally shared between the various duty holders. There is no escaping the liability - someone will be held responsible in the circumstances.
I hope I have succinctly described the problem.
Regards
Ray
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Posted By steve e ashton
You say how and where the work is done. If as a result of the way or the place the work is done the worker is injured - the worker will sue his employer, his employer will sue you and the HSE will probably prosecute both of you.
The general rule is that if you exercise control (authority) then you must accept responsibility (liability).
However the worker will (nearly) always sue his employer
If the accident happens for reasons unconnected with your specifications, then you have no liability for it.
If the accident happens because the refurb company failed to follow your instructions - they are liable. If the accident happens because the refurb worker failed to follow your instructions - then what efforts did his employer (and you!) take to inform, train and monitor? How (if at all) do you enforce your control?
It should be simple - but it gets complicated because there are so many possible permutations of fault and liability in the circumstance you describe, it is impossible to provide a 'one size fits all' answer.
Steve
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Posted By Anne Sheridan
Steve explained it in a nutshell! Legal firms will always advise multiple partnerships to be sued simutaneously so that there is a better chance of litigation so always be prepared.
Anne
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