The dispute came before the court as a special case pursuant to Order 34 RSC, in circumstances where two insurers could not agree whether a motor policy or an employer’s liability policy applied to cover the injuries.

The court ultimately concluded that the motor insurance policy was required to provide cover under the provisions of the Road Traffic Act 1961 (as amended) rather than an employer’s liability policy.

Background

The first plaintiff, Urban and Rural Recycling Limited, ran a waste management business where recycled rubbish would be collected by their bin lorries. Recycling bins would be attached to one of six lifting mechanisms on the lorry manually. The lift would then be operated by a member of staff to mechanically dump waste into the lorry.

In 2013, Urban and Rural was doing its usual collections, with two employees in the truck. At a certain point, the lorry stopped within the confines of the road and a bin was loaded for waste collection. An employee, Mr Moore, was operating the lift at the time. Unfortunately, the lifting mechanism failed and the bin fell on Mr Moore. Mr Moore was badly injured in the accident.

A personal injuries summons issued thereafter against Urban and Rural. The company’s insurers were notified of the accident, and a dispute arose as to which insurer was liable to provide coverage. Accordingly, the parties referred a special case to the High Court under the procedure in Order 34 RSC.

Under an RSA policy, Urban and Rural was indemnified for any damage occasioned to an employee while working in the course of business. However, the RSA policy expressly excluded cover for any liability that required compulsory motor insurance.

As such, and in line with the provisions of the Road Traffic Acts, Urban and Rural also had a commercial motor fleet policy with Zurich, which provided indemnity for any damage caused to third parties. The Zurich policy contained an exclusion that it would not be liable for any injury caused to the driver or person “in charge of the vehicle for the purpose of driving.”

The question which arose was whether the act of a bin falling during the emptying process and hitting Mr Moore was required to be insured under the compulsory insurance requirement of section 56(1) the Road Traffic Act 1961 (as amended). It was noted that the driver or user of a vehicle was excluded from the compulsory insurance requirement under the legislation.

High Court

Mr Justice Leonie Reynolds began her judgment by considering the concept of a “driver or user” of vehicle. The court noted Zurich’s submission that Mr Moore was the user of the vehicle at the time of the accident and therefore liability did not apply.

The court considered the judgments in Vnuk v. Zavarovalnica Triglav DD Case C-162/13 and Rodigues de Andrade v Salvador Case C-514/16, where it was held that the concept of use covered “any use of a vehicle as a means of transport.” The court held that the use of a vehicle under EU law was not confined to a road or public place, but covered any use that was consistent with the normal function of that vehicle.

The court said that it was common case that the accident had occurred while the vehicle was being used as it was intended. The court held that the cases in Vnuk and Rodigues were clearly applicable where Mr Moore was a third party seeking to recover against his employer.

In considering whether the accident was a liability that should have been insured under the Road Traffic Acts. Zurich submitted that Mr Moore was a person “in charge for the purpose of driving” the truck and was therefore its policy did not apply.

The court applied the decision in Lynch v. Lynch and the New PMPA [1993] 3 IR 495, where it was held that a person who had parked a car and moved away from it was not in charge for the purpose of driving the vehicle. It was held that the exception clause only operated when a person was physically driving a vehicle.

The court held that, on the agreed facts befo0re it, Mr Moore was clearly not driving the vehicle at the time of the accident. Further, it was noted that Mr Moore’s pleaded case was consistent with negligent use by virtue of a defect in the vehicle, which was subject to the compulsory insurance requirement.

As such, the court was satisfied that the Zurich policy applied in the case and the liability was covered by the mandatory insurance requirements of the Road Traffic Acts.

Conclusion

It was held that the Urban and Rural was entitled to an indemnity in the underlying personal injuries proceedings from Zurich.