The Supreme Court has acceded to an application for leave to appeal a decision of the Court of Appeal in a dispute to determine liability as between two insurers, arising from a claim for compensation for injuries sustained by an employee whilst he was operating a rubbish truck.

The case arises from an accident in December 2013 involving an employee of Urban and Rural Recycling Limited, which occurred when he was using a lifting hoist mechanism at the back of a rubbish truck, to lift a wheelie bin full of glass, and during this process, the wheelie bin became detached and fell on top of him, causing him to sustain serious injuries.

The employer held two insurance policies at the time of the accident, namely an employer liability policy with RSA Insurance and a motor fleet policy with Zurich Insurance. The RSA policy covered any injuries sustained by an employee in the course of their duties, unless such injuries were relating to a liability under the Road Traffic Acts. The Zurich policy covered injury or loss from the use of a mechanically propelled vehicle, with an exclusion for liability for injury suffered by anyone driving the vehicle or anyone in charge of the vehicle for the purpose of driving, which is standard in motor insurance policies.

The plaintiff, Mr Moore, brought proceedings against his employer, and arising from these proceedings, Urban and Rural Recycling Limited and RSA sought a declaration from the High Court that Zurich was liable to indemnify the employer against Mr Moore’s claim.

In the High Court, Ms Justice Reynolds held that Zurich was responsible, as the employer’s liability to the employer was one required to be insured under the Road Traffic Acts. This was on the basis that term “use” under the Road Traffic Acts included the use of the lift mechanism. Despite the fact that Mr Moore had driving the vehicle immediately before the accident, the court found that at the time of the accident, he was not in charge of the vehicle for the purpose of driving 

Zurich appealed this decision to the Court of Appeal, which held that liability to be insured under the Road Traffic Acts is a liability arising out of the negligent use of a vehicle, by the user of the vehicle. The court concluded that Mr Moore was the user, and as such, liability of the employer to the employee was not a liability that was required to be insured under the Road Traffic Acts. Mr Moore, as an employee, could not be legally liable to pay damages to himself, and so his employer could not incur any vicarious liability. The court found that Mr Moore was in charge of the vehicle for the purposes of driving the vehicle at the time of the accident, and thus the accident fell within the exclusion clause in the Zurich policy.

The Court of Appeal overturned the High Court decision, and found RSA were responsible to answer the claim of Mr Moore.

RSA applied to the Supreme Court for leave to appeal, outlining that the Court of Appeal judgment was based upon the assumption that Mr Moore was the sole user of the vehicle, and thus could have no liability to himself. It was also submitted that the case raised important issues relating to whether the employer was a “user” of the vehicle within the meaning of the Road Traffic Act, 1961, and whether the 1961 Act operates to exclude civil liability of one user, arising out of the use of the vehicle, from mandatory insurance requirements.

The Supreme Court this week accepted that the appeal raises significant issues relating to the Road Traffic Acts, to ambit of mandatory motor insurance, and potentially novel issues in respect of the correct implementation of EU Directives. which requires mandatory insurance cover for all personal injuries to “all passengers, other than the driver, arising out of the use of a vehicle”.

A date for the hearing has not yet been set, and the precise questions to be asked of the court shall be refined at case management of the matter in due course. A definitive decision from the Supreme Court will provide welcome clarification on the term “user” under the Road Traffic Acts, which should in time negate further indemnity and cover arguments between insurers arising from workplace injuries arising from vehicles covered under motor fleet policies.

Niall Bass Senior Associate OBL Solicitors