Amey Properties Ltd v Cornhill Insurance Plc [QBD]
| Jurisdiction | England & Wales |
| Judge | Tucker J. |
| Judgment Date | 07 November 1995 |
| Date | 07 November 1995 |
| Court | Queen's Bench Division |
Queen's Bench Division.
Tucker J.
Alistair Schaff (instructed by Ince & Co) for the plaintiffs.
Roger Ter Haan QC and Anna Guggenheim (instructed by Beachcroft Stanleys) for the defendants.
The following cases were referred to in the judgment:
Brown v Zurich General Accident & Liability Insurance Co LtdUNK[1954] 2 Ll Rep 243.
Conn v Westminster Motor Insurance Association LtdUNK[1966] 1 Ll Rep 123.
Devco Holder Ltd v Legal & General Assurance Society LtdUNK[1993] 2 Ll Rep 567.
Fraser v B N Furman (Productions) Ltd; Miller, Smith & Partners (third party)UNK[1967] 2 Ll Rep 1.
Lane (W&J) v SprattELR[1970] 2 QB 480.
Lefevre v White[1990] l Ll Rep 569.
Liverpool Corp v RobertsWLR[1965] 1 WLR 938.
NFU Mutual Insurance Society Ltd v DawsonELR[1941] 2 KB 424.
Soft v Prudential Assurance Co LtdUNK[1993] 2 Ll Rep 559.
Woolfall and Rimmer Ltd v MoyleELR[1942] 1 KB 66.
Insurance Public liability insurance Indemnity for liability in negligence Collision between contractor's tractor unit and airplane at US Air Force base Liability established against contractor in negligence Whether contractor entitled to indemnity under public liability insurance policy Whether contractor's breach of obligation to keep vehicle in efficient and roadworthy condition sufficient to invalidate policy Whether necessary to. establish recklessness in failing to maintain vehicle in roadworthy condition Whether negligence by contractor sufficient Whether negligence of contractor's employee sufficed.
This was a claim for an indemnity under a policy of public liability insurance in respect of adjudged liability in negligence arising out of an accident at a US Air Force base in Cambridgeshire.
The plaintiff company was held to be liable in negligence for a collision on 9 December 1987 between a tractor unit operated by an employee of the plaintiff at RAF Alconbury, Cambridgeshire, and a United States Air Force aircraft which had just landed and was taxiing along the runway. At the time of the accident the plaintiff was constructing a new runway at the base. The plaintiff sought an indemnity under a public liability insurance policy for liability in damages of US$2m as found by Hobhouse J on 8 May 1991, and an indemnity in respect of its liability to the owners of the tractor unit as adjudged in contribution proceedings in relation to the same incident. The tractor was found by Hobhouse J to be defective.
The insurers denied liability on the basis that the plaintiffs were in breach of the obligation to maintain the vehicle in an efficient and roadworthy condition, and that such failure was causative of the accident. A preliminary issue was set down to determine whether in order to establish a failure to take all reasonable precautions to maintain the vehicle in an efficient and roadworthy condition, the defendant had to prove that relevant acts or omissions by the insured as distinct from its employees, were reckless as opposed to merely negligent.
Held, ruling accordingly:
1. In policies of motor insurance the insured was under a positive obligation to maintain the vehicle in good repair. In construing exclusion clauses in policies of motor insurance it was therefore sufficient to exclude liability if the insurer could establish that the insured had negligently failed to keep the vehicle in an efficient and roadworthy condition. It was not necessary to prove recklessness on the part of the insured.
2. In order to establish a causal act of negligence the insurers had to show the relevant officer or officers of the plaintiffs, and not merely an employee, had negligently failed to ensure that the tractor was maintained in an efficient and roadworthy condition.
Tucker J: The plaintiff, Amey Properties Ltd, seeks an indemnity under a policy of public liability insurance in respect of its liability in negligence to the USA as found by Hobhouse J in his judgment in the main action given on 8 May 1991. That liability arises out of a collision which occurred on 9 December 1987 between a tractor unit being operated by an employee of the plaintiff at RAF Alconbury, Cambridgeshire and a US Air Force TRI aircraft which had just landed and was taxiing along the runway. The plaintiff also seeks an indemnity in respect of its liability to the owners of the tractor unit HS Isis Hire Ltd (Isis) in respect of its adjudged liability in contribution proceedings in relation to the same incident.
The principal defence to the indemnity claim is based upon condition 11 of the policy, which so far as material provides that:
The insured shall take all reasonable precautions to safeguard the insured vehicle from loss or damage and to maintain it in an efficient and roadworthy condition.
I am not concerned with the obligation to safeguard but only with the obligation to maintain.
The insurers allege on the facts that there was a failure to take all reasonable precautions to maintain the vehicle in an efficient and roadworthy condition and that such a failure was causative of the accident.
The factual issues, particularly in relation to causation and the interplay between driver negligence (as adjudged in the main action) and a lack of roadworthiness, are very complex and are in dispute.
However, on 25 April 1995 Master Trench ordered that the following issue be determined before the trial of any other issues in the action, namely:
Whether upon the true construction of condition 11, in order to establish a failure to take all reasonable precautions to maintain the vehicle in an efficient and roadworthy condition, the defendant must establish:
(1) relevant acts or omissions on the part of the insured itself (and not merely its employees); which;
(2) were reckless (and not merely negligent), in the sense that the acts or omissions were done or not done with actual recognition by the insured itself that a danger existed and not caring whether or not that danger was averted.
The order was made on the application of the plaintiffs despite objection taken by the defendants. There was no appeal from the making of the order. Therefore, notwithstanding certain reservations which I entertain and have expressed, it is incumbent upon me...
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