AXA Insurance UK Plc v Norwich Union Insurance Ltd
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE ANDREW SMITH |
| Judgment Date | 14 May 2007 |
| Neutral Citation | [2007] EWHC 1046 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: 2006–853 |
| Date | 14 May 2007 |
[2007] EWHC 1046 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN's BENCH DIVISION
COMMERCIAL COURT
Mr Justice Andrew Smith
Case No: 2006–853
Dermod O'Brien QC and Marie Louise Kinsler (instructed by Morgan Cole) for the Claimant
Roger ter Haar QC and Justin Davis (instructed by Beachcroft LLP) for the Defendant
Hearing dates: 26 April 2007
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The issue that I have to decide (as set out in the Part 8 claim form) is this: “which [of the claimant and the defendant] is liable to indemnify Floodlighting & Electrical Services Limited (hereinafter “Floodlighting”) in respect of Floodlighting's liability to Aaron Keeble arising from an accident”. The claimant, Axa Insurance UK plc (“Axa”), argues that the defendant, Norwich Union Insurance Ltd (“NU”), is liable under a motor liability policy. NU argues that Axa is liable under an employer's liability policy.
The crucial question is whether it was compulsory under the Road Traffic Act 1988 (“RTA 1988”) that Floodlighting be insured against their liability to Mr Keeble. If it was so compulsory, then NU is liable. If it was not, Axa is liable. This depends upon the proper interpretation and application of section 145(4A) of the RTA 1988. There is no question that it was compulsory that Floodlighting be insured in respect of its liability, if not under the RTA Act 1988, then under the Employers' Liability (Compulsory Insurance) Act 1969 (“ELA 1969”).
The background against which this question arises is explained in a Statement of Facts and Matters which has been agreed between the parties. I can do no better than set out (as far as relevant) paragraphs 1 to 20 of it:
“1. By a Policy of insurance … (hereafter called the Employers' Liability policy) dated 31 st August 2002 … [Axa] contracted to indemnify Floodlighting against all sums that Floodlighting should have become legally liable to pay as damages together with costs and expenses in respect of injury sustained by any employee arising out of his employment by Floodlighting in the course of Floodlighting's business.
2. It was the intention of the parties to the Employers' Liability Policy that the insurance provided thereby should provide Floodlighting with the cover required by the Employers' Liability (Compulsory Insurance) Act 1969 and any statutory modification and orders made in respect thereof.
3. By a Policy of insurance …(hereinafter called the Motor Liability Policy) dated 30 th August 2002 … [NU] contracted to indemnify Floodlighting in respect of all sums which Floodlighting should be required to pay at law arising from bodily injury to third parties arising out of an accident caused by or in connection with Floodlighting's vehicle.
4. It was the intention of the parties to the Motor Liability Policy that the insurance provided thereby should provide Floodlighting with the cover required by the Road Traffic Act 1988 (the RTA 1988) and any statutory modifications and orders made in respect thereof.
5. …
6. At the times material hereto Floodlighting was the owner and operator of a Ford Iveco motor vehicle … (hereafter 'the lorry') and was the employer of Stephen John Ward (hereinafter 'Ward') and Aaron Keeble (hereinafter 'Keeble'). Ward's employment status was that of driver/improver/operator; Keeble's employment status was that of operator/labourer.
7. Floodlighting's business included the erection and dismantling of floodlighting, banners and decorations in and across roads at high level and at sports venues.
8. For the purposes of the said business the lorry was fitted as part of its permanent apparatus with a hoist incorporating an elevating platform. This apparatus consisted of a boom which could be rotated in the horizontal plane on a turntable and could be raised and lowered by means of articulated joints one of which ('the elbow') was in the middle of the boom. At the end of the boom was a platform ('the bucket') where a worker could stand and from which he could perform his duties at the requisite height.
9. By virtue of Section 183(3) of the RTA 1988 the apparatus described in paragraph 8 formed part of the vehicle.
10. Floodlighting's job upon which Ward and Keeble were to be engaged at the relevant time was the removal of a star which had formed part of illuminated Christmas decorations in Merthyr Road, Whitchurch, Cardiff and which remained attached to the fascia above a shop in the said road.
11. In the early morning of 14 th February 2003 Ward collected Keeble (who was also his brother in law) from his home and drove him to Floodlighting's premises at Talbot Green, Llantrisant. There the two men got into the cab of the lorry. Ward drove the lorry and Keeble travelled in the passenger seat. The job in Merthyr Road which commenced at about 06.30 was the first job of the day and was to be done when traffic would be at its lightest. The job was only expected to take a few minutes. At no time did Keeble drive the lorry. In so far as either man was in authority it was Ward but he would always listen to what Keeble had to say about safety and would take any such comments into account.
12. Ward parked the lorry on the southbound side of the road; the two men then put out warning cones and signs. Ward then drove the lorry a short distance so as to reposition it with its off side wheels on the carriageway and its near side wheels on the pavement. He lowered the stabilisers and, leaving the engine running, engaged the Power Take Off (which enabled the turntable and boom to be operated). He switched on the hazard warning lights. The street lights were on and the men wore fluorescent yellow jackets.
13. Keeble then got up onto the bed of the lorry and into the bucket which he raised and slewed so as to bring the bucket up to the fascia of the building. Ward remained in the roadway to supervise and act as look out.
14. With the lorry so positioned, the operation of the hoist brought the boom around to an angle across the long axis of the lorry with the 'elbow' protruding into the northbound lane of Merthyr Road.
15. Although the star was unilluminated, Keeble asked Ward to check that it was electrically disconnected and Ward went to the plug which was on the side of the building about two or three metres from the lorry itself. Ward was only away from his position in the road for less than a minute but in that time a large ERF articulated lorry … owned by Freightliner Ltd. and driven by its employee Albert Edward Gale (hereafter 'Gale') in a northerly direction, drove past the lorry, struck the elbow of the boom causing it to spin round and threw Keeble to the ground causing him injury.
16. The parties hereto agree that for the purposes of Section 143(1)(a) of the RTA 1988 Floodlighting was at the material time the user of the lorry in the road and that for the purposes of section 145(3)(a) the injury to Keeble was caused by or arose out of such use of the vehicle on the road.
The parties also agree that the injury to Mr Keeble was one which arose out of and in the course of his employment for the purposes of Section 1(1) of the Employer's Liability (Compulsory Insurance) Act 1969.
17. For the purposes of the issue herein the Court is to assume that there was fault to a material degree in at least the following respects:
(a) On the part of Floodlighting in failing to give proper instructions and through Ward in allowing the lorry and hoist to be positioned so that the elbow of the boom could be struck as aforesaid and in failing to take any steps to prevent this from occurring;
(b) On the part of Freightliner Ltd. through Gale in failing to observe the boom of the hoist which was painted bright yellow and to take avoiding action; and
(c) On the part of Keeble himself in failing to wear and secure the safety harness with which he had been provided.
The Court is not required to consider all or any other respects in which the parties may have been at fault or to consider any apportionment of blame.
18. The liability of Freightliner Ltd. will be discharged by its insurers, Ensign Motor Policies.
19. Any fault on the part of Keeble will reduce his damages on grounds of contributory negligence.
20. One or other (but not both) of the Employers' Liability Policy or the Motor Liability Policy will afford indemnity to Floodlighting in respect of its liability.”
Part VI of the RTA 1988 provides that people must not use, or cause or permit any other person to use, a motor vehicle on a road unless there is in force in relation to such use a policy of insurance or other proper security. Section 145 of the Act specifies the requirements of a policy of insurance that complies with the statute, and section 145(3) provides, “Subject to subsection (4) below, the policy (a) must insure such person, persons or class of persons as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of the death of or bodily injury to any person or damage to property caused by, or arising out of, the use of the vehicle on a road in Great Britain…”. Subsection (4) provides for an exception to subsection (3), that, “the policy shall not, by virtue of subsection (3)(a) above, be required—(a) to cover liability in respect of death, arising out of or in the course of his employment, of a person insured by the policy or of bodily injury sustained by such a person arising out of and in the course of his employment”. Subsection 145(4A) provides for a limited exception to that exception in subsection 145(4), and so brings a limited category of cases back...
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