Urban and Rural Recycling Ltd v Zurich Insurance Plc
| Jurisdiction | Ireland |
| Judge | Mr. Justice Allen |
| Judgment Date | 25 January 2023 |
| Neutral Citation | [2023] IECA 11 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Appeal Number: 2022/4 |
and
[2023] IECA 11
Collins J
Noonan J
Allen J
Appeal Number: 2022/4
THE COURT OF APPEAL
CIVIL
JUDGMENT of Mr. Justice Allen delivered on the 25 th day of January, 2023
. Mr. Joseph Moore suffered devastating injuries in an accident at work on 19 th December, 2013 when a plastic wheelie bin containing glass for recycling fell on him.
. In the circumstances which I will describe, Mr. Moore was using a mechanical lift attached to a recycling truck to lift and tip the wheelie bin into the truck when the bin fell and struck him on the head.
. By personal injuries summons issued on 24 th March, 2014 Mr. Moore brought proceedings against his employer claiming damages for negligence and breach of duty and breach of statutory duty. The employer had two insurance policies and the issue in this action is which of the policies should respond to Mr. Moore's claim.
. Mr. Moore was employed at the time by the first plaintiff, Urban and Rural Recycling Limited (“the Company”) which, as its name suggests, was in the recycling business. The Company owned a Scania recycling truck which had twin lifts on the nearside and one lift at the rear, each designed to lift two plastic wheelie bins and tip their contents into the truck. The lifting process involved manually moving the bins onto a locking point and then operating the lift to raise and tip them.
. On the day of the accident Mr. Moore had been assigned to a round of collections. He was accompanied by Mr. Michael Wickham, the principal of the Company. Mr. Moore was driving the truck between collections.
. The men travelled together to Sinnott's Store, Duncormick, County Wexford, where they alighted from the truck. The truck was stopped at the side of the public road. Mr. Moore loaded the bin onto the lift and operated the lift to lift and tip it. When the bin was near its emptying position it fell, striking Mr. Moore on the head.
. At the time of the accident there were two insurance policies in place.
. The first was an employer's liability policy, described as a “Liability Policy” issued by the second plaintiff, RSA Insurance Ireland Limited (“RSA”) which provided indemnity to the Company:-
“… against legal liability for any damages in respect of Bodily Injury of any Employee within the Territorial Limits caused during the Period of Insurance and arising out of and in the course of employment by the Assured in the Business.”
but which 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.”
. By clause 4 of the general conditions, under the heading “Other Insurance” it was 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 any other policy or policies,”
. The business of the Company was described as:-
“Glass Bottle Recycling – provide bottle bins approx. 1400 to hotels, pubs, restaurants collect and bring to Rehab Glass Co. Ltd. in Naas, Co. Kildare & up to 5% collecting of aluminium cans, including reselling of recycled glass.”
. The second policy was a policy described as a “Motor Fleet Policy” issued by the defendant, Zurich Insurance Ireland Limited (“Zurich”). Section 1 of the policy is entitled “Section 1 – Liability to Third Parties.” Under the heading “WHAT IS INSURED” the Zurich policy provided:-
“Indemnity to insured
WE will indemnify YOU against all sums which YOU or YOUR personal representatives become legally liable to pay by way of damages or costs on account of death or bodily injury to any person or damage to property caused by or in connection with any motor vehicle described in the schedule for any one accident or a series of accidents arising out of one event.”
. Under the heading “WHAT IS NOT INSURED” it was provided that:-
“ Except so far as is necessary to meet the requirements of the Road Traffic Acts Legislation WE will not be liable for:
• Death or bodily injury to:
(i) any person driving the vehicle or in charge of the vehicle for the purpose of driving.
(ii) any passenger being accommodated in or on the vehicle.
WE will not be liable for:
• Death or bodily injury to any person or damage to property caused or arising beyond the limits of any road in connection with:
(i) the bringing of the load to any vehicle for loading or
(ii) the taking away of the load from any vehicle after unloading
by any person other than the driver or attendant of the vehicle.”
. In the general exceptions it was provided that:-
“Use/Driving
WE will not be liable for any loss, damage, liability and/or injury arising out of any event happening:
(i) while any vehicle is being used for any purpose not permitted by the certificate of motor insurance.
(ii) while any vehicle being driven or for the purpose of being driven by or in the charge of any person not authorised by the certificate of motor insurance.”
. The Zurich policy earlier defined the “Insured Person” as “YOU” and “the driver”. “You” was defined as the person, people or company shown in the schedule as the insured, who were the Company and Mr. Wickham. The business of the Company was not defined but the schedule showed an excess of €900 for claims for accidental damage and theft to “the 1994 Scania vehicle that is adapted to take wheelie bins and glass.”
. If it was not obvious from the exclusion of liability for claims beyond the limits of any road in connection with the bringing or taking away of loads by any person other than the driver or attendant, it was from the description of the vehicle, that its use encompassed loading and unloading as well as driving.
. It is useful to observe here that it was common case that the use of the vehicle included the use of the lifts and that the liability covered by the Zurich policy and required by the Road Traffic Acts to be insured included any liability arising from the use of the lifts while the vehicle was stationary. The issue between the parties was whether the liability of the Company, if any, to Mr. Moore arising out of the use of the lift was a liability which was required by law to be covered or was otherwise covered by the terms of the policy.
. By this action, which was commenced by plenary summons issued on 21 st June, 2017, the Company claimed a declaration that Zurich was bound to indemnify it against Mr. Moore's claim. RSA claimed, further and in the alternative, that it was entitled to a contribution to damages and costs paid or to be paid to Mr. Moore. While in form the Company was a plaintiff, the Company was entitled to indemnity from one or other – or possibly both – of RSA and Zurich and in substance they were the real protagonists.
. The facts were admitted and the issue was brought before the High Court, by consent, on a special case under O. 34 of the Rules of the Superior Courts. The questions put before the High Court were:-
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1. Whether the liability (if any) of the Company to Mr. Moore was a liability that was required to be insured under the Road Traffic Acts, and
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2. Having regard to the answer to question 1, whether the Company was entitled to indemnity in respect of Mr. Moore's claim under (a) the Zurich policy, or (b) the RSA policy, or (c) both.
. I pause here to say that while the special case contemplated that the Company might be entitled to indemnity under both policies, the case argued was that it was either/or. It will be recalled that clause 4 of the general conditions of the RSA policy provided that the insurance did not cover any loss or damage insured by any other policy or policies. Accordingly, if there was cover available under the Zurich policy, there was none available under the RSA policy so the answer could not be both.
. By order dated 16 th December, 2021, for the reasons given in a written judgment delivered on 3 rd September, 2021 [2021] IEHC 661 the High Court (Reynolds J.) determined that the Company's liability to Mr. Moore, if any, was a liability which was required to be insured under the Road Traffic Acts, and that the Company was entitled to indemnity under the Zurich policy.
. The High Court judge found first, that the term “user” in the Road Traffic Acts covered the use of the vehicle that led to Mr. Moore's injury, secondly, that Mr. Moore had not been “in charge of the vehicle for the purpose of driving”, and thirdly, that the manner in which Mr. Moore had constructed his personal injury claim was, on balance, consistent with “negligent use” within the meaning of s. 62(1)(b) of the Road Traffic Act, 1961.
. With the benefit of hindsight, the questions as formulated by the special case might perhaps have been expressed more clearly. The first question was whether any liability in respect of Mr. Moore's claim was compulsorily insurable. The second question was whether even if its liability was not compulsorily insurable, the Company was entitled to indemnity under the Zurich policy. It was accepted by Zurich that the indemnity available under the Zurich policy did prima facie cover any liability to Mr. Moore, unless it came within one of the exceptions listed under the heading “WHAT IS NOT INSURED”. However, the listed exceptions were themselves subject to the statutory requirements of the Road Traffic Acts. More straightforwardly, the indemnity available under the RSA policy simply excluded any liability required by law to be insured. Accordingly, if the Company's...
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