Mobile work equipment – motor insurance
Towards the end of 2014, the Court of Justice of the European Union (CJEU) gave its decision in a case in which an individual claimed for damages following an accident during which he was knocked from a ladder by a tractor and trailer in a farmyard. The insurance company refused indemnity on the basis that the relevant policy did not extend to the use of a tractor in a private place.
The CJEU had to consider the concept of ‘use of vehicle’ under EU law. The Court determined that the concept of ‘use of vehicles’ covers any use of a vehicle that is consistent with the normal function of that vehicle and that potentially includes the manoeuvre of a tractor in the courtyard of a farm. In practical terms, this means that motor insurance should cover a vehicle’s normal functions even where it is not being used in public.
In Ireland, motor insurance policies generally only cover vehicles used on public roads. Many employers use mechanically propelled vehicles (MPVs) such as forklifts and diggers in the workplace i.e. in a private setting and not on public roads. In light of the CJEU’s decision, both employers and insurers should review their policies and, if necessary, extend the terms of the policies to cover the use of MPVs on private property.
Personal injuries and employers’ liability insurance
Unlike other jurisdictions, Employers’ Liability (EL) insurance is not compulsory in Ireland. However, most employers will have EL insurance in place to cover claims made by employees for injuries at work or, by others, where the employer is being held vicariously liable for acts or omissions of an employee. Until recently, it was believed that certain types of claims arising from statutory obligations, such as health and safety obligations, placed a strict liability on employers. However, the Supreme Court recently provided some much needed clarity on this subject.
In that case, a bus driver, was injured when the suspension of his bus malfunctioned causing an injury to his neck and lower back. Having been awarded damages in the High Court, Dublin Bus (the employer) appealed the matter to the Supreme Court. The Supreme Court unanimously overturned the High Court’s decision holding that an employer does not have an absolute duty to ensure the safety of work equipment provided to employees. In circumstances where an employer can show that it has done all it can do in relation to the prevention of risk(s), an employer cannot be held strictly liable where injury occurs that was not reasonably foreseeable.
Whilst it should be remembered that the specific circumstances of each case will have to be examined, this is a helpful indication of the Supreme Court’s current view on the scope of an employer’s duties. However, the maintenance of adequate EL insurance is still important in protecting employers from exposure to loss arising from such claims.
Whistleblowing and Employment Practices Liability insurance
Employment Practices Liability (EPL) policies typically cover claims relating to wrongful employment acts by an employer. This type of policy is less frequently taken out by employers than EL insurance. However, the question arises as to whether EPL cover is equally important.
The Protected Disclosures Act 2014 which provides protection for whistleblowers makes provision for an award of up to five years’ remuneration in circumstances where an employee shows that (s)he has been penalised and/or dismissed as a result of having made a protected disclosure. This is a departure from the more usual award of a maximum of two years’ remuneration for breaches of employment legislation.
As with other claims for wrongful employment practices, claims under the 2014 Act should be covered by EPL policies. When putting insurance in place, however, employers should clarify with the insurance provider that benefits under the policy will extend to the broader category of “workers” as defined in the 2014 Act, as opposed to employees only. Workers include employees, former employees, independent contractors, trainees, agency workers, individuals on work experience and potentially volunteers.
Contributed by Aisling Butler and Nuala Clayton.
