Urban and Rural Recycling Ltd and RSA Insurance Ireland DAC v Zurich Insurance Plc

• Jurisdiction: Ireland
• Judge: Ms. Justice Reynolds
• Judgment Date: 03 September 2021
• Neutral Citation: [2021] IEHC 661
• Court: High Court
• Docket Number: [Record No. 2017/5636 P.]

Between

Urban and Rural Recycling Limited and RSA Insurance Ireland DAC

Plaintiff

and

Zurich Insurance Plc

Defendant

[2021] IEHC 661

[Record No. 2017/5636 P.]

THE HIGH COURT

Insurance – Employer’s liability – Personal injuries – Plaintiffs stating questions of law arising from the proceedings in the form of a special case for the opinion of the High Court – Whether the liability (if any) of the first plaintiff to an employee of the first plaintiff in the underlying personal injuries proceedings was a liability that was required to be insured under the Road Traffic Acts

Facts: The second plaintiff, RSA Insurance Ireland DAC, provided employer’s liability insurance to the first plaintiff, Urban and Rural Recycling Ltd, under a policy of insurance. The RSA policy was in force on 19th December, 2013 when an employee of the first plaintiff, Mr Moore, sustained severe life-changing personal injuries in the course of using a recycling truck owned and operated by the first plaintiff. The first plaintiff had taken out motor insurance in respect of the recycling truck with the defendant, Zurich Insurance PLC. That policy was also in force on the 19th December, 2013. The plaintiffs instituted proceedings claiming declaratory and other relief with a view to resolving the issue relating to which of the insurers was liable to provide indemnity to the first plaintiff. The parties agreed that issues of law raised by the proceedings might appropriately be determined under the special case procedure pursuant to O. 34 of the Rules of the Superior Courts. The questions of law raised in the special case were as follows: (1) Whether the liability (if any) of the first plaintiff to Mr Moore in the underlying personal injuries proceedings was a liability that was required to be insured under the Road Traffic Acts? (2) Having regard to the answer to question (1), whether the first plaintiff is entitled to indemnity in the underlying personal injuries proceedings in respect of Mr Moore’s claim under (a) the Zurich policy, or (b) the RSA policy, or (c) both the Zurich policy and the RSA policy?

Held by the High Court (Reynolds J) that the term “user” within the Road Traffic Acts properly construed covers the use of the vehicle that led to the injury to Mr Moore and the liability in respect thereof, having particular regard to Vnuk v Zavarovalnica Triglav DD Case C-162/13, EU:C:2014:2146. Reynolds J was satisfied that Mr Moore was not “in charge of the vehicle for the purpose of driving” having regard to Lynch v Lynch and the New PMPA [1993] 3 IR 495 where an identical exception clause was at issue and further, where it was common case that the vehicle had been parked and Mr Moore had alighted therefrom. In Reynolds J’s view, the manner in which Mr Moore had constructed his personal injury claim was, on balance, consistent with “negligent use” within s. 62(1)(b) of the Road Traffic Act 1961 (as amended), whether by virtue of a defect in the vehicle or other negligence, so as to be subject to the compulsory insurance requirement. For those reasons, Reynolds J was satisfied that under the Road Traffic Acts, the liability of the first plaintiff to Mr Moore was required to be covered by an approved policy of insurance such that the entire liability (if any) rested with Zurich because the RSA exclusion applied.

Reynolds J was satisfied that the answers to the questions posed in the special case are: in relation to question (1), that the liability (if any) of the first plaintiff to Mr Moore in the underlying personal injury proceedings is a liability that was required to be insured under the Road Traffic Acts; in relation to question (2), the first plaintiff is entitled to an indemnity in the underlying personal injury proceedings in respect of Mr Moore’s claim under the Zurich policy.

Special case.

JUDGMENT of Ms. Justice Reynolds delivered on the 3rd September, 2021

Introduction

1 The parties have stated questions of law arising from the proceedings herein in the form of a special case for the opinion of the court.

Background

2 The first plaintiff (otherwise referred to as ‘Urban and Rural’) carries on the business of glass recycling. In the course of its business, it provides bottle recycling bins to commercial entities and engages in regular bottle bin collections.

3 The second plaintiff (otherwise referred to as ‘RSA’) provided employer's liability insurance to Urban and Rural under a policy of insurance.

4 The RSA policy was in force on 19th December, 2013 when an employee of Urban and Rural, Mr. Joseph Moore, sustained severe life-changing personal injuries in the course of using a recycling truck owned and operated by Urban and Rural.

5 Urban and Rural had taken out motor insurance in respect of the recycling truck with the defendant, Zurich Insurance plc (otherwise referred to as ‘Zurich’). That policy was also in force on the 19th December, 2013, the date of the accident.

The proceedings

6 The plaintiffs instituted the within proceedings claiming declaratory and other relief with a view to resolving the issue relating to which of the insurers is liable to provide indemnity to Urban and Rural. The parties agreed (and the court ordered accordingly) that issues of law raised by these proceedings might appropriately be determined under the special case procedure pursuant to O.34 of the Rules of the Superior Courts.

7 In the context of these proceedings, RSA contends as follows:-

• (a) that the motor policy, i.e., the Zurich policy, provides cover to Urban and Rural in respect of the accident and that Zurich is, therefore, required to provide indemnity;

• (b) that liability covered by the Zurich policy is one that is required to be insured under the Road Traffic Act, 1961 (as amended) (the ‘1961 Act’) and consequently, liability is excluded under the RSA policy so that it is Zurich alone that is required to provide indemnity.

8 Zurich has disputed that it has any liability under the Zurich policy (whether by contribution or full indemnity).

Special case

9 Order 34 of the Rules of the Superior Courts provides as follows:-

“The parties to any cause or matter may concur in stating the questions of law arising therein in the form of a special case for the opinion of the Court. Every such special case shall be divided into paragraphs numbered consecutively, and shall concisely state such facts and documents as may be necessary to enable the court to decide the questions raised thereby. Upon the argument of such case the court and the parties shall be at liberty to refer to the whole contents of such documents, and the court shall be at liberty to draw from the facts and documents stated in any such special case any inference, whether of fact or law, which might have been drawn therefrom if proved at a trial.”

Order 34, r.2 further provides:-

“If it appears to the court that there is in any cause or matter a question of law, which it would be convenient to have decided before any evidence is given or any question or issue of fact is tried, or before any reference is made to an arbitrator, the court may make an order accordingly, and may direct such question of law to be raised for the opinion of the court, either by special case or in such other manner as the court may deem expedient, and all such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed.”

The facts

10 The agreed facts are set out in the special case as follows:-

• “(1) The first Plaintiff carries on business as an independent recycling operator whereby it attends third-party sites to carry out collections of material for recycling. Recycling material stored on the said sites in bins (including wheelie bins) is loaded on to the recycling truck.

• (2) The Recycling Truck has lifting points for six (6) bins, with four (4) points at one side capable of holding four (4) bins of domestic type bin size 360 litres and two (2) at the rear.

• (3) The lifting process involves manually moving the wheelie bin onto the locking points, which sit in a castellated row and which lock in place below the bin shelf. The bins lift upwards to the top of the wagon side where the tipping process occurs, lifting the lid at approximately 35 degrees to the holding bar. Photographs of the Recycling Truck and the Bin (or an equivalent) are appended hereto at Appendix 3.

• (4) On 19th December, 2013, the first Plaintiff undertook recycling collections.

• (5) Mr. Moore was driving the Recycling Truck between collections with the principal of the first plaintiff, Mr. Michael Wickham, as passenger.

• (6) At Sinnott's Store, Duncormick, Co. Wexford, the Recycling Truck stopped on the verge of the road immediately outside the said store.

• (7) The Recycling Truck having stopped, Mr. Moore and Mr. Wickham alighted therefrom. Mr. Wickham fetched two bins, one of which was the relevant bin for the purpose of these proceedings, and placed them at the side of the Recycling Truck for Mr. Moore to load onto the lifting equipment of the Recycling Truck.

• (8) Mr. Moore loaded the said bin onto the lifting equipment of the recycling truck.

• (9) While in the process of being lifted, and with Mr. Moore operating and controlling the lifting equipment, the Bin fell from near its emptying position to the ground striking Mr. Moore in the head.

• (10) For the purpose of this Special Case, it is agreed that at the time of the accident both Mr. Moore and Mr. Wickham were acting in the course of their employment and the Recycling Truck was in a public place.

• (11) Mr. Moore sustained severe personal injuries in respect of which he has instituted the Underlying Personal Injuries Proceedings. A copy of Mr. Moore's claim form submitted to the Personal Injuries Assessment Board and a booklet of the pleadings and proceedings (tabbed and indexed) in the Underlying Personal Injuries...