YOUR WORKSHOP AND THE LAW
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imagine the following scenario: a
commercial vehicle is brought into your workshop for a routine service. During the service one of your fitters fails to spot a ruptured brake line and he does not adequately check the functioning of the brakes.
The vehicle has to be stored in the workshop overnight because, due to staff illness, the service is taking longer than it should. Your workshop roof leaks in heavy rain, seriously damaging the electrical system of the truck which has been partially dismantled.
The vehicle's owner arrives the following day to collect it and is directed by the receptionist to the workshop. As the customei reaches the truck he trips over a tool or slips on some spilt oil and is injured. Later that day one of his drivers arrives to pick up the truck which is needed for a valuable haulage contract which the workshop was told about when it was brought in.
The brakes fail as it is being driven out of the workshop and the vehicle knocks over a pedestrian at a nearby bus stop. The vehicle is written off, the driver is injured and the owner loses his haulage contract as he has no other vehicles available.
Operators and owners of commercial vehicles which are involved in any of the incidents outlined above receive a wide range of protection under the law.
So let's take a brief look at each of the events to see how the law deals with such incidents, how it apportions blame, and once liability has been decided, how the levels of any damages are assessed.
Damaged vehicles
Vehicles that are damaged whilst undergoing a service in your workshop are dealt with under the law of bailment. A bailment occurs when there is a delivery of goods (in this case a vehicle) upon a condition that their receiver (the servicing workshop) shall ultimately restore them to whoever delivered them.
The servicing workshop (the bailee) is under a legal duty to take reasonable care of the vehicle because the workshop has assumed responsibility for its safe keeping.
This duty will depend on the circumstances of each individual case. It is possible, if both parties agree, to vary the particular terms of the contract so that during nightfall, for example, all vehicles must be stored in a secure compound.
In one case, concerning coaches, a Judge commented: "If you confide a basket of jewels to the custody of a yokel, you cannot expect him to Lake the same care of it that a banker would."
The duty of the workshop extends to all damage inflicted upon the vehicle whilst in its care, unless the workshop can show that there was no lack of care on its part.
Damage to the vehicle caused by a leaking roof would certainly be hard to defend, but in one case concerning the safe keeping of vehicles a court decided: "There is (subject to the above) no absolute duty on bailees of (vehicles) to keep them behind closed and locked doors within a garage or other suitable lock-up premises."
However, if vehicles have been stored in this way during previous dealings between the parties, or if the contract states that they must be stored overnight in this manner, then a duty to do so will arise.
Accessories and loads
Commercial vehicles often contain valuable equipment and accessories and some are left for service with their payloads.
Liability will not extend to property that is in the vehicle (including its payload) if the servicing workshop was not aware of it, as there would be an involuntary deposit of property with the servicing workshop.
The workshop would not be liable for the properties' safe custody or protection as long as the workshop did not use it or convert it for its own use.
Employee's acts
A servicing workshop will not be liable for the acts of an employee who, when acting outside the normal course of his employment, on a frolic of their own, damages or steals a vehicle or its contents — unless the workshop had specifically entrusted that employee with the duty to take care of the vehicle.
In one case where goods were stolen by an employee, it was decided that as there was no negligence in selecting or employing him in the first place (such as failing to follow up references which would have revealed numerous previous convictions for dishonesty) his employer was not liable for his acts. To avoid liability for any damage to a vehicle the workshop must show that the loss or damage occurred without any default, neglect or misconduct by them or its employees (if acting within their normal course of employment).
Alternatively, a carefully drafted exemption clause in your contract may exempt you from liability for damage to the vehicle. Failing this, the amount of damages claimed by the vehicle owner will be the cost of repairing the vehicle or, if irrepara ble, its value before the damage and any consequential loss which results from the workshop's negligence and which is not too remote.
This will include the loss of use of the vehicle, inconvenience, and any loss of forseeable profits. Losses that are consequential upon the damage to property are generally recoverable: in one case a car hire firm recovered its loss of earnings when its car was damaged by the defendant.
Injured customers
Legal duties are imposed on occupiers of premises when members of the public, customers and even trespassers enter those premises and are injured because those premises are unsafe.
The Occupier's Liability Act 1957 will cover everyone who comes into the workshop for lawful purposes, such as delivering or collecting a vehicle, or inspecting it in mid-repair.
Under the 1957 Act, an occupier is someone who exercises a sufficient degree of control over premises and where any failure on his part to take care will result in injury to those coming lawfully on to the premises.
In the case of rented or leased premises, responsibility for injuries will depend on the amount and circumstances of the occupier's control over those premises — day-to-day safety will inevitably be under the control of the workshop.
This begs the question, when is somebody a visitor, and when are they a trespasser? The answer is a visitor will have the implied or express permission of the occupier to enter the premises.
Liability under the 1957 Act applies only to visitors who are using the premises for the purposes for which they have been invited or permitted by the occupier to be there. The permission of the occupier will normally be limited to a specific area (reception), a specific time (9am-5pm), and an authorised purpose (to collect a vehicle).
An invitation to enter the waiting area and the car park will not normally count as an invitation to walk into the workshop. A court might pose the question: "Is it reasonable for the visitor to think that their invitation extended to other (more hazardous) areas of the workshop?"
In one case it was decided that visitors who are simply lost, or possibly looking for the toilet, are still likely to be visitors if their search is a reasonable one. Under the Act, occupiers have "a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there".
A workshop's duty extends to any property lawfully on the premises (such as vehicles) but is restricted to damage arising from the condition of the premises only, and not the activities carried out in them (such as servicing vehicles). This will be dealt with under the law of negligence.
Limiting liability
Occupiers can limit their duty under the 1957 Act, but the Unfair Contract Terms Act 1977 closes most of that loophole. If a visitor is hurt due to your negligence you cannot limit your liability by displaying a notice or inserting a term in a contract. In the case of loss or damage caused to the vehicle, any attempt to exclude liability by a contract term or notice must be "reasonable".
An occupier can certainly warn of a hazard by using a notice — but under the 1957 Act such a warning must be clear and explicit, easily seen and should state what the danger is.
Even if a visitor knows of a specific danger and willingly agrees to enter that area (such as collecting a vehicle from a cluttered workshop) the occupier will not be absolved of his responsibility. After all, the vehicle owner may not have willingly accepted the risks; he may be in a hurry to collect the vehicle or have been told that he has to collect it from the workshop.
Trespassers
What of people who are on your premises without your actual or implied permission? If you allow a visitor to enter part of your premises, and without permission he enters a restricted area, that visitor will probably be viewed as a trespasser.
Nonetheless, under the Occupier's Liability Act 1984, you still have a legal duty to take reasonable care to ensure that he does not suffer injury due to the danger.
This duty exists if: • The workshop is aware of a danger (an unmarked, slippery, poorly lit bay) or has reasonable grounds to believe it exists; • The workshop knows or has reasonable ground to believe the trespasser will come into contact with it; • Trespassers are in the vicinity of a danger and it would be reasonable to expect protection to be offered to them.
In a recent case, a council was found not to be liable for the injuries of somebody who was walking across its fenced-off property and fell into a deep trench. The court accepted there was no evidence that people used the land, and so no reason to foresee that anyone would walk near the trench. Likewise, an occupier can take steps to warn of a danger as no duty will extend to those who willingly accept risks to themselves.
Workshop managers should remember a judge's words in an occupiers' liability case who said: "When you invite a person into your house to use the staircase, you do not invite him to slide down the bannisters".