The Court of Appeal has overturned a finding that Zurich Insurance was liable under a motor policy for any damages over an accident in which a worker was injured while he was loading a wheelie bin containing glass bottles on to a collection lorry.
In 2020, the High Court found Zurich, rather than the employer liability insurer, RSA Insurance Ireland, must provide an indemnity.
The accident occurred on December 19th, 2013, when Joseph Moore, an employee of Urban and Rural Recycling of Wexford, suffered devastating injuries.
He had loaded a wheelie bin full of bottles on to the truck’s lifting equipment in Duncormick, Co Wexford. While he was operating and controlling the lift, the bin became detached, fell and struck Mr Moore on the head.
Mr Moore brought a claim against his employer alleging, among other things, negligence and a failure to provide a safe system of work.
The company had two policies in operation. The first was an employer’s liability policy issued by RSA for accidents arising out of a person’s employment. The second was a “motor fleet policy” issued by Zurich.
A dispute arose over whether the liability of the company, if any, to Mr Moore arising out of the use of the lift was a liability under the Zurich policy.
Urban and Rural Recycling and RSA brought proceedings seeking a declaration that Zurich was bound to indemnify the firm against Mr Moore’s claim. RSA further and alternatively claimed it was entitled to a contribution to damages and costs paid or to be paid to Mr Moore.
The issue was referred to the High Court for determination.
The High Court found Zurich rather than RSA was liable.
The judge found the term “user” in the Road Traffic Acts covered the use of the vehicle that led to Mr Moore’s injury. It also found Mr Moore had not been “in charge of the vehicle for the purpose of driving”.
It found the manner in which Mr Moore had constructed his personal injury claim was, on balance, consistent with “negligent use” within the meaning of the relevant section of the Road Traffic Act, 1961. This meant it was the motor policy that applied.
Zurich appealed, with RSA opposing.
In a judgment on behalf of the three-judge Court of Appeal, Mr Justice Senan Allen found the High Court had erred in its analysis and conclusion.
He said the liability, if any, of Urban and Rural to Mr Moore was not a liability for negligent use of the vehicle by the user.
Accordingly, it was not a liability that was required to be insured under the Road Traffic Acts.
Mr Moore’s injury had been caused by or in connection with the recycling truck within the meaning of the relevant section of the Zurich policy, he said. However, indemnity to the company was excluded by the exclusion of liability in respect of bodily injury to the person in charge of the vehicle for the purpose of driving, he said.
He set aside the High Court order.
