AXA Insurance UK Plc v Norwich Union Insurance Ltd.

For the purposes of section 145(4A) of the Road Traffic Act 1988, a person is “carried in or upon a vehicle” when being transported or moved from one place to another. The question is assessed in the wider context of why the person is in or upon the vehicle, rather than at a single instant. The provision does not adopt a cover-all approach for employees injured while working on or around a stationary vehicle. Where the statutory language cannot bear an interpretation urged to marginally improve compliance with European directives, the court cannot adopt that strained construction. Liability may therefore remain within the employers’ liability regime rather than the compulsory motor insurance regime.

Axa insured Floodlighting under an employers’ liability policy. Norwich Union insured it under a motor liability policy. An employee, Mr Keeble, was injured when a vehicle-mounted hoist was struck by another lorry while Keeble was working from the hoist’s bucket.

The parties agreed that the injury arose out of the use of the vehicle on a road and out of and in the course of employment. The issue was whether section 145(4A) of the Road Traffic Act 1988 brought the liability within compulsory motor insurance, or whether it remained covered by compulsory employers’ liability insurance.

1. The claim concerned which insurer was liable to indemnify Floodlighting for its liability to Mr Keeble. The decisive issue was the meaning of “carried in or upon a vehicle” in section 145(4A) of the Road Traffic Act 1988.

2. “Carried” bears its ordinary and natural meaning in context. It ordinarily connotes transportation or movement from one place to another. A person does not necessarily cease to be carried immediately when the vehicle stops, since the court must take a broader view of why the person is in or upon the vehicle. The word did not extend to an employee who was working from the vehicle-mounted bucket while the vehicle was stationary.

3. The legislative history and the existence of two compulsory insurance regimes did not support a cover-all interpretation. The statutory scheme could produce different results for employees working together on the same task, but that anomaly did not justify rewriting section 145(4A).

4. The subsection implemented article 1 of the Third Directive on Motor Insurance. Domestic legislation should, where possible, be interpreted consistently with European directives, applying the approach in Pfeiffer [2005] ECR 1307, Adeneler (Case C-212/04), Litster v Forth Dry Dock [1990] 1 AC 546 and Webb v EMO [1993] 1 WLR 49. However, the directive was directed to passengers being transported and did not require the broader construction proposed by Axa.

5. The European provisions did not require the court to maximise the scope of the motor insurance regime where the domestic wording could not bear that meaning. A strained construction would aggravate anomalies in the dual regime and was unnecessary to secure compliance with the directives.

6. Mr Keeble was not “carried” within section 145(4A) at the time of the accident. Floodlighting’s liability was therefore insured by Axa under the employers’ liability policy. A reference to the European Court was unnecessary and inappropriate.