Urban and Recycling Ltd and Another v Zurich Insurance Plc

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr. Justice Brian Murray
• Judgment Date: 10 October 2024
• Neutral Citation: [2024] IESC 43
• Docket Number: Supreme Court Appeal Numbers: S:AP:IE:2023:000038 High Court Record Number: 2017/5636 P

Between/

Urban and Rural Recycling Limited

Plaintiff

and

Rsa Insurance Ireland DAC

Plaintiff/Appellant

and

Zurich Insurance Plc

Defendant/Respondent

[2024] IESC 43

O'Donnell C.J.

O'Malley J.

Woulfe J.

Hogan J.

Murray J.

Supreme Court Appeal Numbers: S:AP:IE:2023:000038

Court of Appeal Record Number: 2022/4

High Court Record Number: 2017/5636 P

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Facts: These proceedings started from an action for damages for personal injuries against Urban and Recycling Limited (URRL) by one of its employees, Mr Moore. Mr Moore was injured when he was operating a lift to empty a bin into a truck owned by URRL and the bin fell and struck him on the head, seriously injuring him. The Court was asked to determine the following question; "whether s.56 of the Road Traffic Act 1961, as amended required the vehicle insurance cover mandated by that provision cover the liability (if any) of URRL to Mr. Moore arising from these circumstances?" If the the vehicle insurance covers libility and if such liability exists, is the Defendant obliged to provisions in a policy of motor insurance it has underwritten to indemnify URRL against it. If not the plaintiffs submitted a second and subsidiary argument that Zurich was nonetheless so liable pursuant to certain other provisions of the policy. If that argument failed, it was suggested that RSA was required to provide an indemnity to URRL under an employer's liability policy it had underwritten for that company.There were three questions to be addressed in the case; (1) whether a liability to a 'user' falls within s.56(1)? (2) whether a body corporate could be a 'user'; and (3) whether one person could, through the actions of another, be a user? The Judge held that Zurich's contentions as to the proper construction of s.56 were not well founded. As the Judge answered the legal questions in favour of RSA and against Zurich it was a matter for the parties to proceed to agitate those findings as they deemed appropriate.

Judge held that Zurich was mandated to cover the indemnity

JUDGMENT of Mr. Justice Brian Murray delivered on the 10 ^th of October 2024

The issue

1 . The complex legal issues presented by his case arise from the simplest – and most unfortunate – of events. At their root is an action for damages for personal injuries brought against the first plaintiff (‘ URRL’) by one of its employees (‘ Mr. Moore’). The injuries were sustained by Mr. Moore when a truck owned by URRL was stopped at the side of a public road and while he was operating a lift to deposit the contents of a bin into the truck. When the bin was near its emptying position it fell, striking Mr. Moore on the head and seriously injuring him.

2 . The central question before this Court is whether s. 56 of the Road Traffic Act 1961, as amended (‘ the RTA’) requires that the vehicle insurance cover mandated by that provision cover the liability (if any) of URRL to Mr. Moore arising from these circumstances (‘ the Moore liability’). If so – and if there is such a liability – it is common case that the defendant (‘ Zurich’) is obliged pursuant to provisions in a policy of motor insurance it has underwritten (‘ the Zurich motor insurance policy’) to indemnify URRL against it. If not, a second – and subsidiary – argument arises to the effect that Zurich is nonetheless so liable pursuant to certain other provisions of the policy. But if that argument also fails, then it appears that the second named plaintiff (‘ RSA’) is required to provide an indemnity to URRL under an employer's liability policy it has underwritten for that company (‘ the RSA employer's liability policy’).

3 . The High Court (Reynolds J.) found that s. 56 mandated that any liability arising from this claim be insured ( [2021] IEHC 661). The Court of Appeal (in a judgment of Allen J. with which Collins J. and Noonan J. agreed) found that s. 56 did not require such cover and that the Zurich policy did not otherwise apply ( [2023] IECA 11). Leave to appeal was granted ( [2023] IESCDET 63) because the proceedings raised issues as to the ambit of the mandatory motor insurance obligation, as well as potentially novel questions regarding the proper interpretation of Article 12(1) of Directive 2009/103/EC (‘ the 2009 Directive’). 1 The 2009 Directive requires member states to adopt measures to ensure that civil liability in respect of the use of vehicles normally based in their territory is covered by insurance. Section 56 of the RTA is one of the provisions relied upon by the State as implementing its obligations under the 2009 Directive.

The facts and the proceedings

4 . URRL is engaged in the business of collecting and recycling waste materials. At the relevant time it owned a Scania recycling truck, which it used in the course of that business. The truck had lifting points for six bins, with twin lifts at the passenger side and one lift at the rear. Each of the lifts was capable of holding two bins. The lifting process involved an employee manually moving the bins onto a locking point and then operating the lift to raise and tip their contents into the vehicle.

5 . On the day of the accident (19 December 2013), Mr. Moore was assigned to drive the Scania truck on a round of collections. He was accompanied by Mr. Michael Wickham, the principal of URRL. They travelled to Sinnott's Store, Duncormick, County Wexford, where they both alighted from the truck. The truck was stopped at the side of the public road when Mr. Moore loaded the bin, attached it onto one of the passenger-side lifts and operated the mechanism to lift and tip it. When the bin was near its emptying position it fell, striking Mr. Moore. The bin fell on Mr. Moore from a height. The injuries he sustained were extremely serious and, regrettably, life changing in nature.

6 . On 24 March 2014, Mr. Moore instituted proceedings against URRL for damages, claiming that the injuries he had sustained had been caused by the negligence, breach of contract, breach of duty and breach of statutory duty of URRL. It was Mr. Moore's case that the accident occurred because the mechanism lifting the container failed, resulting in the bin falling onto him. In his pleadings he alleged that URRL had failed to provide a safe system of work, or adequate plant and equipment, that it provided defective or deficient equipment to the plaintiff and that it failed to comply with a range of statutory duties, including duties imposed by the Safety, Health and Welfare at Work Act 2005 and regulations made thereunder. Specifically, it was claimed that URRL had imposed requirements on the plaintiff that were likely to cause him injury and that it failed to provide him with appropriate material, resources and equipment to enable him to safely carry out the task with which he had been entrusted on the occasion in question. Those proceedings have since settled on the basis of a payment to Mr. Moore of €4.75M (this happening after the decision of the High Court in this case). Accordingly, there has not been (and it appears will never be) a judicial determination of how, exactly, the accident occurred and whether URRL was in any way legally responsible for it.

7 . It is clear that URRL has valid and effective insurance in place that entitles it to an indemnity in respect of Mr. Moore's claim. As neither RSA nor Zurich accepted that the claim fell within their respective insurances, the plaintiff instituted the within proceedings claiming declaratory relief with a view to resolving that issue. The parties agreed, and the Court ordered accordingly, that the issues of law thus arising should be determined under Special Case procedure enabled by O. 34 of the Rules of the Superior Courts. The questions were:

• (i) Whether the liability (if any) of URRL to Mr. Moore was a liability that was required to be insured under the Road Traffic Acts, and

• (ii) Having regard to the answer to question 1, whether URRL was entitled to indemnity in respect of Mr. Moore's claim under (a) the Zurich policy or (b) the RSA policy or (c) both.

8 . Three points arising from the Special Case should be noticed. First, as the matter proceeded, the parties have both adopted the position that (ii)(c) did not arise: the liability they said was either that of Zurich, or of RSA. Second, the questions are contingent and, as they have been framed, hypothetical. It has never been decided that URRL has any liability to Mr. Moore. However, the Special Case refers to ‘ the legal liability of the first Plaintiff to Mr. Moore in respect of his claim in the underlying personal injuries proceedings’, and a full set of the pleadings in that case was appended to the Case. The Special Case, as is usual, proceeded on agreed facts, but those do not propose any evidential basis by reference to which the Court can decide how that liability arose. Finally it should be said that although URRL was a plaintiff in the action it took no part in the hearing of the Special Case, which has proceeded as if an action only between RSA and Zurich.

The policies

9 . The RSA employer's liability policy provided indemnity to URRL:

‘…against legal liability for any damages in respect of Bodily Injury of any Employee within the Territorial Limits caused during any Period of Insurance and arising out of and in the course of employment by the Assured in the Business.’

10 . It excluded:

‘…any liability as required to be insured by the relevant Sections of the Road Traffic Acts or their equivalent in respect of Requirements in respect of Policies of Insurance relating to compulsory Insurance.’

11 . Clause 4 of the general conditions, under the heading ‘ Other Insurance’, provided that:

‘This insurance does not apply in respect of any loss or damage which at the time such loss or damage arises is insured by or would but for the existence of this policy be insured by...