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AXA Insurance UK Plc v Norwich Union Insurance Ltd, High Court, 14 May 2007

6 July 2007
The issues

Insurance – Road Traffic Act 1988 – Employers Liability insurance – road traffic insurance – whether employers or road traffic policy responded.

The facts

AXA insured “Floodlighting & Electrical Services Ltd” under an Employers Liability policy. The Norwich Union insured Floodlighting & Electrical Services Ltd under a motor liability policy. Floodlighting & Electrical Services Ltd owned a lorry and employed Mr Ward and Mr Keable. Mr Ward was a driver/operator and Mr Keable an operator/labourer. Floodlighting & Electrical Services Ltd’s business involved the erection and dismantling of floodlighting, banners, etc in and across roads at high level and at sports venues. The lorry had a hoist incorporating and elevating platform. On the platform the worker could stand and perform his necessary duties. Under Section 183(3) of the RTA 1988 this apparatus formed part of the vehicle. Mr Ward and Mr Keable were dealing with the removal of a star which had formed part of a Christmas decoration in Merthyr Road, Whitchurch, Cardiff. On the 14th February 2003 Mr Ward collected Mr Keable and drove him to Floodlighting & Electrical Services Ltd’s premises where they got into the cab of the lorry. Mr Ward drove it and Mr Keable travelled in the passenger seat. The first job in Merthyr Road was at 6.30am when traffic would be at its lightest. At no point did Mr Keable drive the lorry. Insofar as either man was in charge it was Mr Ward but he would always listen to what Mr Keable had to say about safety and take any comments into account. The lorry was parked on the south bound side of the road and warning cones and signs were put up. The lorry was then driven a short distance to reposition it with its offside wheels on the carriageway and its nearside wheels on the pavement. Stabilisers were lowered and hazard warning lights switched on. The engine was running engaging the “Power Take Off” which enabled the turntable and boon to be operated. The street lights were on and the men wore florescent yellow jackets. Mr Keable got onto the bed of the lorry and into the bucket which he raised so as to bring it up to the side of the building where the star was positioned. Mr Keable asked Mr Ward to check that the star was electrically disconnected and Mr Ward went to the plug, which was on the side of the building 2 or 3 meters away from the lorry. He was only away from the lorry for a very short time – less than a minute – but in that time a large lorry, driven by Freightliner Ltd, drove past the lorry, struck the elbow of the boon, causing it to spin round and throw Mr Keable to the ground causing him personal injuries.

The parties had agreed, for the purposes of the claim, that, for the purposes of Section 143(1)(a) of the RTA 1988 that Floodlighting & Electrical Services Ltd was the user of the lorry in the road and that, for the purposes of Section 145(3)(a) the injury to Mr Keable was caused by or arose out of the use of the vehicle on the road. The parties sought a determination from the Court as to who was the responding insurer.

The Court had been asked to assume, for the purposes of the declaration, that there was fault in at least the following respects:-
a) on the part of Floodlighting & Electrical Services Ltd and failing to give proper instructions and through Mr Ward in allowing lorry and hoist to be positioned so that the elbow of the boon could be hit by a passing vehicle.

b) On the part of Freightliner through Mr Gale and failing to note the boon and avoid it.

c) On the part of Mr Keable in failing to wear and secure the harness with which he had been provided.

The RTA 1988 provided that people must not use or cause or permit any person to use a motor vehicle on a road unless there was in force, in relation to such use, a policy or insurance or other proper security. Section 145(3) provided that the policy had to insure such a person in respect of death or bodily injury to any personal damage to property caused by or arising out of the use of the vehicle on a road in Great Britain. Subsection 4 provided for an exception to the effect that the policy did not, by virtue of subsection 3, be required to cover liability in respect of death or bodily injury arising out of or in the course of his employment. Subsection 145(4A) provided in turn for an exception to that exception bringing back a limited category of cases within subsection 145(3), namely persons carried in or upon a vehicle or entering or getting on to or alighting from a vehicle. In such cases subsection 4 did not apply unless cover in respect of that liability was in fact under the Employers Liability (Compulsory Insurance) Act 1969. The key question was whether Section 145(4A) applied to Floodlighting & Electrical Services Ltd’s liability to Mr Keable and depended on whether or not, at the relevant time, he was a person “carried on or upon a vehicle”.

The decision

The main issue was whether it was compulsory under the Road Traffic Act 1988 that the employer should be insured against its liability to the employee who had been injured. If it was compulsory, then the Norwich Union policy would respond and the Norwich Union would be liable to indemnify the employer. If it was not compulsory then AXA would be liable to indemnify under its employer liability policy.

The answer to that question depended on whether or not Mr Keable was a person who had been “carried in or upon the vehicle” within the meaning of Section 145(4A) of the Act.

The word “carried” contained the concept of movement from one place to another. At the time of the accident Mr Keable was not being moved from one place to another – he was not being transported. In other words he was not one of the class of persons in respect of liability to whom motor insurance was compulsory. The policy that would respond in respect of the employer’s liability to him was therefore AXA’s policy of employer’s liability.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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