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Row between insurers over liability for worker’s injuries goes to Supreme Court

May 29, 2023 in News

The Supreme Court has agreed to hear a further appeal in a dispute between two insurers over which must provide an indemnity for devastating injuries caused to a bin company worker.

The High Court found that Zurich Insurance was liable, under a motor policy, for the injuries sustained when a wheelie bin containing glass bottles fell on to the employee as he was loading it on to a collection lorry.

The appeal court overturned this, holding instead that RSA Insurance Ireland, as the employer liability insurer, should answer the claim.

Insurance obligations

RSA is now appealing to the Supreme Court, which considers the case raises “significant and important issues” relating to the operation of the Road Traffic Acts and to the precise ambit of the mandatory motor insurance obligations.

Joseph Moore, an employee of Urban and Rural Recycling, of Wexford, suffered life-changing injuries in the December 19th, 2013, incident. While he was operating and controlling the lift, the bin became detached, fell and struck him 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 a “motor fleet policy” issued by Zurich and a separate insurance policy with RSA for accidents arising out of a person’s employment.

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.

Negligent use

The High Court found Zurich, rather than RSA, was liable.

Zurich successfully appealed this ruling, with the Court of Appeal holding that liability to Mr Moore was not one for negligent use of the vehicle by the user. Accordingly, that court held, it was not a liability that was required to be insured under the Road Traffic Acts.

In a determination published this week, a Supreme Court panel of three judges said the further appeal proposed by RSA and Urban and Rural Recycling raises “potentially novel issues” concerning the proper interpretation and scope of an element of an EU directive relating to insurance against civil liability for motor vehicle use.

In asking the court to hear their appeal, RSA and the company argued the Court of Appeal’s judgment is predicated on the assumption Mr Moore was the sole user of the vehicle and could have no civil liability to himself. There are important issues to be determined, the appellants submitted, including whether the company was a “user” of the vehicle under the Road Traffic Act of 1961.

The appellants also asked the court to consider whether a person who alights from a vehicle to lift and tip a wheelie bin into a vehicle is a “driver” under the relevant EU directive, which provides for mandatory insurance cover for all personal injuries to “all passengers, other than the driver, arising out of the use of a vehicle”.

Zurich contended that no issues of general public importance were raised by the appellants.

A date has not yet been set for the Supreme Court appeal.

By Ellen O’Riordan at the Irish Times

Magnus Osa Izedomwen -v- RFC Security Limited and Fastone Limited T/A Ricks Burger

October 26, 2022 in News

A married 47-year-old man has had his Personal Injuries action dismissed in the Circuit Court.

Magnus Osa Izedomwen, a qualified Security Operative with an address in Dublin 15, took the case against his former employer, RFC Security Limited, as well as the premises he was working in at the time of the incident accident, Rick’s Burgers on Dame Street in the city centre.

When asked about the details of the incident by his Counsel, Mr. Izedomwen informed the Court that in the early hours of Monday the 18th of January 2016 he was racially and physically assaulted by two female American tourists when he had asked them to stop putting their feet on the tables of the restaurant. This lead to him sustaining minor injuries to his cheek and hand.

When cross-examined by defence Counsel, Eamon Marray BL (instructed by Mary Byrne of OBL Solicitors), it was put to Mr. Izedomwen that he had given different accounts of how the incident occurred to his Solicitor, a Doctor, and via his PIAB application and that his evidence given to the Court today could not be believed.

It was further put to the Plaintiff that he was the Security Operative on the night of the incident and that if he had believed the two individuals who allegedly assaulted him were of any danger, he should have excluded them from the premises.

Detective Garda Christopher Fitzgerald of Pearse Street Garda Station gave evidence of attending at the scene of what he noted to be a minor assault and that none of the parties to the incident made a complaint either on the night or subsequently to it. As such no Garda investigation followed.

Security Expert Joe Leahy outlined to the Court his belief that an unsafe system of work was in place and that had there been another security operative in situ with Mr. Izedomwen, the incident would not have happened.

Judge James O’Donohoe at this point noted that the very nature of the business being conducted by Rick’s Burgers at the time of the incident was conducive to people being on the premises in a state of intoxication and that minor incidents of this nature must surely be common place. The Judge went on to ask what more could the First Named Defendant have done to prevent the incident given how quickly it happened. 

In giving Judgment, Judge O’Donohoe accepted that while Mr. Izedomwen had indeed suffered a minor assault at the hands of two females, and while the Court had sympathy for him, Mr. Izedomwen was a fully trained and qualified Security Operative who was tasked with securing a premises where there was a high likelihood of people attending at same who would be under the influence of alcohol to some degree or other and that no matter how many security operatives were in place at the time, the incident was not possible to stop as it happened so quickly. The Judge dismissed the Plaintiff’s claim against both Defendants.

In his application for costs, Eamon Marray BL submitted that a full defence to the Plaintiff’s claim had been maintained throughout and that costs must follow the event.

Judge O’Donohoe said he was not going to penalise the Plaintiff’s with a Costs Order however he vacated all previous Costs Orders obtained by the Plaintiff against the Defendant’s prior to the Hearing leaving both sides to pay their own costs. 

Dublin Circuit Court

Tuesday 25th October 2022 4:00pm

Before His Honour Judge James O’Donohoe

Dublin Circuit Record No. 524/2017