Who is responsible for hitting service on day rate work?

[Gunners]

A good friend of mine is being pursued by a builder via a solicitor for money relating to a damaged gas service. Its actually a builder I've worked for before so know them both - bit awkward but have obviously dodged a bullet on this one!
But it does raise an interesting issue, who is legally responsible for damage, the sub contractor or the contractor?
Things to note;
1. Your man was on day work not priced work labour only.
2. He has been paid in full several months ago
3. No service drawing was shown or issued (doubt anyone has it on a private house extension)
4. No banksman was provided
5. Neither party have any paperwork or contracts in place - they should but you know how it is - plus we all know eachother!

My opinion is as it was the Builders job, he has to take it on the chin, he makes money when its good and loses when it goes wrong - thats priced work! Day rate labour only is exactly that. But technically your man was a sub contractor so might have some assumed responsibilities in the eyes of the law? Its £400 so not crazy money but the Builder got kicked off the job without getting paid a few months later so I imagine is trying to claw back what he can.

Anybody come across this before?

 

[sjs5060]

Yep, been there done that. Builder needs telling to go feck himself. If your on hire it the clients responsibility to tell you where to dig/what to do whatever. All your responsible for is pulling the levers and doing as your told.
Whoever is getting the cream on the job has to take the hit when stuff goes wrong. That's the way it works, no argument, no comeback, end of story.
If a labourer had caught it with a spade (easily done) would he expect them to pay?

Stuff like that really gets my goat and I've had to put more than one builder in their place for it over the years. If they want me to take the risks I'll price the job accordingly and take everything on the chin. If they want a machine and driver to save themselves money they should be greatfull they ended up with a driver like me not some joystick attendant and look after their own feckin job.

Ste

 

[Gunners]

Yep, been there done that. Builder needs telling to go feck himself. If your on hire it the clients responsibility to tell you where to dig/what to do whatever. All your responsible for is pulling the levers and doing as your told.
Whoever is getting the cream on the job has to take the hit when stuff goes wrong. That's the way it works, no argument, no comeback, end of story.

And this is my view too. I've had to swallow it plenty of times when it goes wrong - was even me once On this job he literally caught the top of a joint, very unlucky, however the builder has sent it through a solicitor so it requires a legal response. And I don't know where the law stands on this. One thought we had was to keep replying to letters with more letters and rack up the guys solicitor bill. Whats a letter cost these days? £50?

 

[Danny]

I took on a new guy and on his first day he knicked a cable whilst digging out somewhere for the sweeper to tip out, had a phone call the next morning from the driver saying he's been told to go home...... next thing the contracts managers on the phone get him gone turns out he had wiped the electric out to fifty homes and western power had to break into the site to find the fault at 8.30pm

Client was at fault, no1 was watching the driver, no1 had told him about the electric etc.
They took the hit for the damage. I had just been paid for the client on the friday so I took the hit for the low loader and drivers wage for the day £430.00 win some you loose some

 

[fred]

solicitors letter means nothing.

They have to take you to court, how much is he after ?

A £150 frightner letter is just that, he's chancing you will blink and cough up.

Dont pay the scroat a penny.

If you were of a revengeful nature:

Call HMRC fraud as he was receiving cash and not declaring it, ripping the VAT etc 0800 788 887

Make sure to ring up HSE 0300 003 1647 and drop in in it on his next site. Unsafe working practices, nice hefty on the spot fines.

What goes around comes around!

 

[Smiffy]

Its considered 50/50 builder should have supplied stats and made operator aware
Operator should have refused to break ground without stats and area cat scanned

This was the findings from two recent utility strikes with multiple contractors on site
Also hse have ruled you cant just blame the machine operator if you haven't provided stats
Also should be pointed out to the builder that utility strikes must be reported to HSE and will incure an investigation into the working practices of the principal contractor

 

[JD450A]

Operated Plant Hire Terms and Conditions
These conditions are considered to be agreed from the start of any operated hire period, in any circumstance where the operator feels the task requested may be ill advised or badly planned we will try to advise/guide based on the Information given. However we do not accept and responsibility for advice given and it is up to the client to make the final decision.
Whilst the hirer is responsible for the delegation of tasks and duties, the operator has full right to refuse to carry out a task on the grounds of Safety or Risk of damage to the machine.​

1. ...... Plant will not be held liable for damage to Underground Services or obstructions unless trail holes/service maps are provided.
2. In situations where there is less than 6” clearance around a machine/work area ...... Plant does not accept liability for damage caused to other property by Concrete, Demolition Debris, Spoil Etc.
3. ...... Plant Accepts no Liability for damage caused to Lorrys/Motor Vehicles when towing/recovering them, it is the operator/driver of the Stuck Vehicles responsibility to correctly attach towing equipment (E.G Strops, Chains or Ropes)
4. ...... Plant does not allow or humor the use of our equipment by anyone bar it’s own operators/contractors. Such use will be charged at a minimum of double the standard operated hire rate. This is due to Insurance and Damage issues arising from the use of “Self Drive” plant.
5. All machines are required to be accessible to engineering staff at all times, we do not accept responsibility for delays to works caused by mechanical failure/damage however if a machine breaks down the Client is not expected to pay for that day, unless the damage has been caused by damage due to works (E.g wear and tear caused to earth engaging components)
6. All tasks carried out are the sole responsibility of the Client, We do not accept responsibility for any damaged caused in association with work as instructed by the Client. (I.e we will not accept responsibility for damaged to structures caused by poorly planned works/undermining/inadequate shoring) the only responsibility that will be taken is in the case of damage caused by negligence of a operator except where stated in 2 and 8)
7. ...... Plant does not accept responsibility for damage to Paved, Slabbed or other surfaces caused by the weight of the machine or it’s type (E.g Steel Crawlers). We may recommend the use of Mats, Plywood sheets or Special machine types in these situations.
8. All machinery is to be accessible for removal at all times. We reserve the right to remove machines from jobs if the client is not forth coming with payment or we feel the situations and work requested of the operator is unsafe. Should a machine be inaccessible we reserve the right to charge a standing fee of no less than £500 a week. Removal of the machine may also be carried out with the client billed
9. Excavation besides existing structures and foundations is the Clients responsibility. ...... hire accepts no Liability to damage, subsidence or collapse caused during such works. Damage caused to plant, machinery and equipment is chargeable alongside the weekly hire rate equivalent to that of Clive Barford Ltd for the machine in question until it has been repaired.
   
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