[2010] CSOH 163


in the cause








Third Parties:


Pursuer:  Allardice;  Thompsons

Defenders:  Watson, solicitor advocate;  Simpson & Marwick WS

First Third Party:  Stephenson, QC, Galbraith;  Andersons Solicitors LLP

Second Third Party:  Hanretty, QC, Duthie;  Brodies LLP

10 December 2010

[1]        At about midnight on 3 September 2006, the pursuer rode his bicycle into violent collision with the rear of a stationary trailer which had been parked overnight in the street where he lived.  Having suffered grievous injuries in that accident, he now claims substantial damages from the HGV driver who left the trailer in that position and, vicariously, from the haulage company by whom the driver was employed.  As first defenders, the haulage company have convened as third parties two insurance companies with whom relevant arrangements for public liability and fleet motor cover were respectively in place.  For different reasons, each of these third parties declines to indemnify the first defenders against the pursuer’s claim, and a preliminary proof restricted to the disputed issue of indemnity has now taken place before me over 4 days.

[2]        By Joint Minute no. 32 of Process, the parties have agreed certain facts and circumstances pertaining to the pursuer’s accident.  Paragraphs 1-3 of that Joint Minute are in the following terms:

“1.           On 3 September 2006 the second defender, in the course of his employment with the first defender, drove a tractor unit and trailer from Immingham Docks.  The tractor unit was registration number V675 DEF.  The tractor unit was owned by the first defender.  The trailer bore the identifying number HT9072.  The trailer was owned by a customer of the first defender.

2.             On 3 September 2006 the second defender parked the trailer on Duchlage Road, Crieff.  He disconnected the tractor unit.  He drove the tractor unit to his home.  He intended that, on the following day, he would reconnect the tractor unit to the trailer and drive it to Aberdeen.  The second defender did not, and did not intend to, put the tractor unit to any other use on the night of 3 September 2006.

3.             At or around midnight on 3 September 2006 the pursuer rode his bicycle into the trailer.”

[3]        As regards the relevant insurance arrangements, paragraphs 4 and 5 of the same Joint Minute further provide:

“4.           As at 3 September 2006 the first defender had the benefit of a policy of public liability insurance issued by the first third party.  The policy number was SD COM 1259187.  Number 7/4 of process is a copy of the policy schedule.  Number 7/5 of process is a copy of the wording of the public and product liability section of the policy.  They are each to be held as equivalent of the principal.

5.             As at 3 September 2006 the first defender had the benefit of a policy of motor insurance issued by the second third party.  The policy number was FMV 3679738.  Number 7/1 of process is a copy of the certificate of motor insurance.  Number 7/2 of process is a copy of the fleet motor insurance schedule.  Number 7/3 of process is a copy of the policy wording.  They are each to be held as equivalent of the principal.”

[4]        In essence, the dispute between the first defenders, on the one hand, and the two third parties on the other (and indeed between the third parties inter se) concerns the proper interpretation of these identified policies and in particular the question whether the pursuer’s claim against the first defenders falls within the scope of either or both of them.

[5]        With a view to assisting the court in the resolution of these issues, the first defenders and both third parties have led evidence at the preliminary proof.  This evidence fell into three principal categories, namely (i) general features of the road haulage business;  (ii) general practice and understanding within the insurance industry;  and (iii) further details of the circumstances in which the trailer came to be where it was when the pursuer’s accident occurred.  As was acknowledged on all sides, evidence of such matters might legitimately help the court to judge the true meaning and application of the contractual policy provisions which were in dispute.  Ideally, the court should be clothed with the same general background knowledge as the parties would have had at the time of contracting.  From that perspective, the actual words of a contract should be given their ordinary, popular meaning unless (for example in a specialist context) this was evidently inappropriate, and where a commercial document was in issue the search should be for a commercially sensible outcome.  Evidence of the parties’ subjective contractual intention would not, however, be admissible.  These well-known principles were explained in Bank of Scotland v Dunedin Property Investment Co Ltd 1998 SC 657, (notably by Lord President Rodger at p.661 and Lord Kirkwood at p.670);  in Investors Compensation Scheme Ltd v West Bromwich Building Society and Others 1998 1 WLR 896 (esp. per Lord Hoffmann at pp. 912-3);  and again very recently in Multi-Link Leisure Developments Ltd v North Lanarkshire Council 2010 UKSC 47 (esp. per Lord Hope at paras [21] and [22]).  In the event of genuine ambiguity, however, the offending words would fall to be interpreted contra proferentem, that is, against the interests of the party responsible for their inclusion in a standard form document.  In an insurance context, the rule would require any genuinely ambiguous policy wording to be construed in a manner favourable to the insured.

The evidence led
[6]        Turning now to the evidence led at the preliminary proof, the salient points which I accept on the subject of road haulage may be briefly summarised as follows:

(i)            An articulated vehicle comprised a powered tractor unit connected to a purpose-built trailer.

(ii)           A tractor unit could only be attached or connected to one trailer at a time.

(ii)           Tractor units and trailers would be purchased separately, and no tractor unit had its own dedicated trailer.

(iv)          Over its working life, a tractor unit would haul a variety of trailers from different sources.  In particular, it was commonplace for hauliers’ tractor units to haul trailers belonging to customers or other third parties.

(v)           Consistently with the above, the first defenders’ tractor units would haul trailers belonging to third parties for between 40 and 60 per cent of the time.

(vi)          The value of a standard trailer was about £15,000, while the value of a refrigerated trailer might rise to about £80,000.

(vii)         While current road traffic legislation in this country requiring third party risks to be covered by insurance applied to powered tractor units, it did not apply to detached trailers on their own.

(viii)        Working hours for HGV drivers were restricted by the EU Working Time Directive and relevant Regulations.  This involved inter alia daily breaks and a minimum 24-hour rest period in any working week.

(viiii)       HGV driving hours were also restricted by statute to a maximum of some 45 hours per week.

(x)            These restrictions on working time and driving hours would regularly cause journeys to be interrupted for mandatory rest period purposes.  This was not at all unusual.  “Parking up” in such circumstances would often involve the tractor unit and trailer remaining connected, but sometimes that was not the case.

[7]        As regards practice within the insurance industry, there were two main chapters of evidence which I had no difficulty in accepting.  These were to the following effect:

(i)            Lloyds underwriters such as the second third party would routinely seek to control the level of risk to which they were exposed.  Unlimited insurance exposure was undesirable, and in that context “Martini cover” was something of a derogatory term.  Such control would be exercised by careful wording of general policy terms, and by the judicious use of special endorsements to extend or restrict the level of cover which would otherwise be provided.

(ii)           On the uncontradicted evidence of Gary Armstrong, a Fleet Senior Underwriter with the first third party in Glasgow, there was no market norm whereby (as suggested by the second third party on Record) detached trailers would be covered only by public liability insurance.  Some motor policies included such cover, and everything would depend on the particular terms under consideration.  Examples were an Allianz motor policy (production 21/16) and an AXA haulage policy (production 21/17).

[8]        Finally, as to the circumstances in which the trailer came to be in Crieff on the night in accident, evidence was led from the second defender, Brian Campbell, and from two directors of the first defenders, Malcolm Moir junior and his father Malcolm Moir senior.  In certain peripheral areas, there were apparent contradictions and uncertainties, but the main thread of their account was clear enough and I felt able to accept it.  According to Mr Campbell, whose weekly timesheet was available as production 7/6, he had taken a trailer down to Immingham Docks, near Hull, on the Saturday for onward shipment to Scandinavia.  This was pursuant to certain reciprocal arrangements with Westco, a Danish customer, whereby outgoing and incoming trailers would cross at Immingham.  On this occasion, the outgoing trailer was detached and left in the ferry queue from about 5pm while Mr Campbell (with his tractor unit) took a necessary break near Cleethorpes.  Very early on the Sunday morning, he uplifted the incoming Westco trailer which was already loaded for ultimate delivery in Aberdeen.  Driving north, he arrived in Crieff at about 9.30am, by which time he required to take a minimum weekly rest break of 24 hours.  At a total of 39¾, moreover, his weekly driving hours were nearing the statutory maximum.  By longstanding arrangement with his employers the first defenders, Mr Campbell proposed to spend that rest break at his own home very close to Crieff.  This was a frequent occurrence when, at the end of a working week, he had to uplift a trailer at Immingham for delivery in Aberdeen.  The alternative would have been to interrupt the journey at some other point, where there would be no domestic facilities.

[9]        As regards the aftermath of the accident, Mr Campbell acknowledged that he had been suspended by the first defenders and had very soon left their employment, but became somewhat reticent as to the reasons for this.  Eventually he conceded that his suspension was for leaving the trailer detached and insecure on a public road.  There was also some evidence from Mr Campbell to the effect that, when he returned to Duchlage Road on the Monday morning to find the trailer gone, he telephoned Malcolm Moir junior to see whether (as might previously have been discussed) a different driver had been sent south from Aberdeen to collect it.  According to him the reply was in the negative, and when Malcolm Moir junior was asked about this he professed to have no recollection of such a conversation and could think of no reason (other than, theoretically, for a trailer exchange whereby Mr Campbell might be sent south again with a different trailer while the original one was taken north to Aberdeen by somebody else) why the despatch of a second driver from Aberdeen to Crieff would ever have been in contemplation.

[10]      Malcolm Moir junior went on to confirm the regular arrangement whereby Mr Campbell was permitted to take his weekend rest break at home.  According to him, however, the tractor unit and trailer were supposed to be “parked up” together in a lay-by close to where Mr Campbell lived.  But, irrespective of the mode of “parking up”, the first defenders would remain responsible for the trailer and its load while in transit.  The relevant documentation included a CMR form, confirming the applicability of the EU Convention on the International Carriage of Goods by Road.  And although Mr Moir believed that the first defenders had insurance cover for detached, as well as attached, trailers,  he would have regarded the “parking up” of both tractor unit and trailer together as achieving better compliance with the company’s insurance arrangements.  In this respect, however, he appeared to have the risk of theft in mind, rather than any potential liability in damages to an injured third party.

[11]      Malcolm Moir senior deferred to his son regarding current practice within the haulage industry, and went on to confirm his understanding of the first defenders’ various insurance arrangements.  In his view, as confirmed by a brokers’ letter (production 21/11) in 2004, the company held comprehensive motor insurance cover for detached and attached trailers alike.  As evidenced by endorsements T03 and T07 to the same policy, however, the risk of theft up to the value of a given trailer would only be covered in certain limited situations.  An extension to this theft cover had been sought in 2006, but refused.

The policy questions
[12]      With all of that evidence in mind, the defenders maintained that they were entitled to indemnity under both of the disputed policies.  Neither of the third parties could, in the circumstances, free themselves from liability, and the court should find both obliged to indemnify the defenders on a pro rata basis.  In contrast, each of the third parties advanced reasons why their own policy should be held inapplicable, and why any obligation to indemnify the defenders should fall on the other third party alone.  Failing that, and subject to the £2 million limit on indemnity in the AXA policy, any liability to indemnify the defenders should be shared equally.

[13]      Before considering the parties’ competing contentions in greater detail, it is convenient at this point to notice the key provisions of each of the policies under consideration.  Beginning with the AXA policy (production 7/5), its principal indemnity clause was in the following terms:

Part 1 - Public Liability


The Company will indemnify the Insured against all sums that the Insured shall become legally liable to pay as damages and costs and expenses of claimants in respect of accidental

(a)           Injury to any person

occurring within the Territorial Limits during the Period of Insurance and happening in connection with the Business.”

As previously noted, this indemnity was limited to £2 million, and the policy then went on to set out certain exclusions and further conditions.  Exclusion 2 made it clear that the indemnity would not apply to legal liability “… arising out of the ownership possession or use by or on behalf of the Insured of any mechanically propelled vehicle or trailer attached thereto in circumstances where compulsory insurance or security is required or where insurance is provided by another policy.”  This clearly had no application to a detached trailer for which compulsory insurance was not required, but Special Condition 7 was more in point.  That read as follows:

“7.           Other Insurances

The Company will not indemnify the Insured in respect of liability which is insured by or would but for the existence of this Section be insured by another policy except in respect of any excess beyond the amount payable under such other policy or which would have been payable under such other policy had this insurance not been effected.”

It was on the construction and application of this special condition that the first third party’s bid for freedom was based.

[14]      As regards the Chaucer policy (variously productions 7/2, 7/3, 27/6 and 27/8), section 1: ‘Liability to third parties’ began with this principal provision:

What we cover

Your liability while using your vehicle

We will insure you for all amounts which you may be legally liable to pay:

      For death of or bodily injury to any person;  and

      For damage to property

as the result of an accident involving your vehicle including loading or unloading …”

The phrase “your vehicle” was defined elsewhere as denoting any vehicle shown on the schedule with its fitted accessories and spare parts, but damage to the vehicle itself was excepted from section 1.  Importantly, however, the definition went on to make special provision for articulated vehicles, whereby “your vehicle” would mean “both the tractor unit and its one trailer whether or not these component parts are connected at the time of accident, damage or loss”.  For present purposes this appeared to disapply section 2:  “Towing”, which concerned only units towed by “your vehicle” as defined.  As regards the term “using”, that was not defined in the policy, but appeared in contradistinction to “driving” both later in section 1 itself, and also in section 8 (‘Unauthorised use’) and section 11 (‘General exceptions’).  Also relevant for present purposes were section 5 (‘Damage to your vehicle and fire and theft’, covering notified trailers only), together with certain exclusions and exceptions under section 1 and in section 12 (‘General conditions’).  In a list of exceptions to section 1, detailing what was not covered, there was specified:  “ŸLiability incurred by anyone who is insured against the same liability under any other insurance”.  Along similar lines, general condition J provided as follows:

Other insurances

If at the time of any claim under this insurance there is any other cover in force insuring the same loss, damage or liability as our insurance, we will only pay any amount above that provided by the other insurance …”

[15]      In seeking to avoid liability to indemnify the defenders, the second third party contended that on a proper construction of (a) the term “using” in section 1, and (b) the words “its one trailer” and “connected” in the definition of “your vehicle”, it was clear that the pursuer’s accident fell outwith the scope of the indemnity cover provided.  Consistently, it was said, endorsements T03 and T07 within the Schedule to the policy, whereby (in the context of damage or theft) indemnity extended only to the value of a given trailer, confirmed the second third party’s general reluctance to incur widespread exposure relative to detached trailers.  The same reluctance was further evident from the first defenders’ lack of success in having such cover further extended in early 2006.

[16]      Against that background, I propose to deal with the disputed issues arising under each of the policies in turn.  Logically, as it seems to me, the Chaucer policy must be considered here first, since (a) the “double insurance clause” argument for the first third party would become wholly unnecessary if the Chaucer cover were held not to apply;  and (b) but for the “double insurance clause” argument, I understood the first third party to concede the engagement of their own policy.

The Chaucer policy
(i)         Parties’ submissions
[17]      According to senior counsel for the second third party, the first defenders’ problems here were twofold.  First, the detached trailer involved in the accident did not, at the time, fall within the definition of “your vehicle” so as to bring section 1 of the policy into play.  Where uncoupling had been deliberate and not accidental, the detached unit could no longer qualify as the tractor unit’s “one trailer” in terms of the definition.  That qualification had admittedly existed during the journey from Immingham to Crieff, but it had been brought to an end by uncoupling.  Importantly, it was said, the definition used the term “connected” in that context rather than “attached”, and only accidental disconnection (for example in the course of a road accident) would allow the necessary nexus to be maintained.  In this context it could not matter why, or for how long, a deliberate uncoupling occurred:  the nexus was thereby broken and, consequently, the insurers’ exposure to widespread liability was restrained.  Any other construction of the definition would open the door to such exposure, and that could not reasonably have been intended.  Undesirably such a construction would also be of uncertain application, since it would be difficult to draw the line between degrees of non-physical association which either would, or would not, engage the definition.  When, for example, would qualification as a tractor unit’s “one trailer” begin and end in the context of a trailer exchange such as Malcolm Moir junior had mentioned in evidence?

[18]      Secondly, counsel argued that, at the material time, the first defenders plainly were not “using” the detached unit as a trailer.  Primary meanings attributed to the word “use” in the Oxford English Dictionary connoted actual employment of some kind.  More importantly, this policy was written in a road traffic context, and it was in that context that “use” had to occur.  Use for storage, or application to general business purposes, would not do:  what mattered was use as a trailer on the road.  This could not be said of a trailer which had effectively been abandoned.  This trailer was neither powered nor steerable on its own, and the need for an express extension to “loading and unloading” in section 1 of the policy confirmed the limited “use” of a detached trailer which was otherwise contemplated.  The fact that this approach might produce insurance difficulties with regard to a detached tractor unit, or with regard to a complete articulated vehicle if parked unattended, could not be allowed to deflect the common sense of the second third party’s position.  Where the components of an articulated vehicle were uncoupled, it was unreasonable to conclude that two separate units would then require insurance with two separate “uses” having to be considered.

[19]      As regards authorities on “use” of vehicles in a statutory context, these were said to be of limited assistance.  The “gloss” put on that term by the Lord Chief Justice in Elliot v Grey 1959 1 QB 367, at p. 372, to the effect that “have the use of” might be synonymous, had been doubted by the First Division in Tudhope v Every 1976 JC 42 and was obviously inappropriate here.  Availability was not the test.  Only actual use in transit could be thought to satisfy the policy requirement.  A more apt formulation by the Lord Chief Justice in Elliot was “having the advantage of (the vehicle concerned) as a means of transport”.  Of greater assistance, perhaps, was the decision in Thomas v Hooper 1986 RTR 1, where the Queen’s Bench Division held that a disabled and undriveable car being dragged along the street was not “in use” for compulsory third party insurance and MOT purposes.  It was not, in short, capable of being operated as a vehicle.  Admittedly, however, Scottish authorities such as Tudhope and Swan & Co v MacNab 1978 SLT 192 had not there been cited to the court, and more recent English decisions such as Pumbien v Vines 1996 RTR 37 had not followed the Thomas line.

[20]      The position adopted by the other parties on these issues was quite different.  On the policy definition of “your vehicle”, they prayed in aid the unchallenged evidence of road haulage practice and maintained that, in the absence of dedicated pairings, a tractor unit’s “one trailer” had to denote the unit with which it was, for the time being, associated on a particular journey.  There was no other credible option.  This was effectively conceded by the second third party’s witness Mr Barber, and made complete sense in the present motor insurance context.  The journey from Immingham to Aberdeen was still in progress.  It had only been temporarily interrupted for mandatory rest break purposes.  The goods, for which CMR responsibility was retained, were still aboard, and the journey was due to be resumed on the following day.  If this was not the tractor unit’s “one trailer” in such circumstances, what was?  On the evidence there was no other tractor unit whose “one trailer” it might be, and the notion that deliberate uncoupling was, without more, sufficient to break the required nexus was wholly without merit.  Not only did the definition contain no such restriction, but there was no possible reason to deny the phrase “whether connected or not” its ordinary and natural meaning.  If any deliberate uncoupling broke the nexus and thus excluded a detached trailer from the definition of “your vehicle”, then the express reference to “loading and unloading” in section 1 would be confusingly otiose.  Had deliberate uncoupling been intended to have the significance for which the second third party contended, their own policy could surely have made that clear.  Accordingly, if the necessary association between tractor unit and trailer was present in the context of a journey still in progress, then both parts of an articulated vehicle would continuously qualify under the definition, whether connected or not.

[21]      As to the meaning to be attributed to the term “using” in section 1 ― an issue which only arose for consideration if both tractor unit and trailer were held to qualify as “your vehicle” in terms of the definition ―, it was again submitted that the second third party had no legitimate answer to the first defenders’ claim to indemnity.  It was especially in a road traffic context, where compulsory third party cover was  mandatory for the powered tractor unit, and indeed for the articulated vehicle as a whole, that “using” had to denote employment for the purposes of the journey from Immingham to Aberdeen which was still in progress.  If, under the Road Traffic Acts, the long-term parking of decayed and undriveable vehicles had repeatedly been held to qualify as “use” on the road (for example in Elliot, Tudhope, Swan and Pumbien), there was no reason to treat the first defenders’ trailer as any less “in use” here.  As before, the consigned goods were still aboard;  the journey had only been temporarily interrupted for a rest period mandatory under statute;  and the loaded trailer would be moving on to Aberdeen on the following day.

[22]      As the Lord Justice General explained in the Tudhope case,

“… a person who places and keeps a motor vehicle on the road can be said to be using it, and also to be using it in circumstances which may cause injury to third parties.”

On an ordinary and natural reading of the policy wording, the same general considerations should apply here and lead to the same result.  Other road users might come in to collision with a parked trailer, or a parked trailer might run away and cause an accident.  It was precisely such situations for which the first defenders had sought insurance cover, and that should not be denied to them on technical grounds.  The second third party’s alternative approach was simply too restrictive, and contrary to indications elsewhere in their own policy it seemed to equate “using” with “driving” so as to deprive that distinction of any content.  For all of these reasons, the second third party’s policy should be held to apply in the circumstances of this case.

(ii.)       Discussion and conclusions
[23]      Having taken time to consider the competing submissions, I am persuaded that the approach of the first defenders and first third party is to be preferred, and that section 1 of the second third party’s policy is plainly engaged in the circumstances of this case.  I have no difficulty with the proposition that the fleet motor policy was devised for a wide range of road traffic purposes (including, but not restricted to, compulsory third party cover under the Road Traffic Acts), and that its terms must be construed with that context in mind.  In my view, however, this consideration tends to weaken, rather than enhance, the second third party’s position where vehicles both moving and stationary, attended and unattended, are susceptible to road traffic issues concerning inter alia construction and use, roadworthiness and insurance.  In a haulage context, moreover, the evidence confirmed that articulated trailer units were interchangeable, and that no tractor unit had its dedicated trailer.  It also confirmed that commercial journeys might be interrupted more than private journeys, on account of mandatory rest periods and restricted driving hours.  Against that background, I have little hesitation in construing the policy as the first defenders and first third party suggest.

[24]      On the question whether the detached trailer in this case fell within the policy definition of “your vehicle”, it is hard to give any sensible content to the concept of a tractor unit’s “one trailer” unless, as Mr Barber confirmed in evidence, that simply denotes whatever trailer is, for the time being, associated with a tractor unit for the purposes of a given journey.  The position might be different if “dedicated” trailers were a common feature within the industry, but that is apparently not the case.  I am therefore content to construe this part of the policy definition in a manner consistent with Mr Barber’s understanding, and in doing so I am reassured by the fact that  the insurers’ exposure would appear to remain at a reasonable (indeed a minimum) level which can be identified with reasonable certainty.

[25]      As to the following phrase “whether connected or not”, I am unable to see any reason why these words should not be given their ordinary and natural meaning so as to include a tractor unit’s “one trailer” while both attached and unattached.  Where only the “one trailer” can qualify here, and where the context of a given journey is not exceeded, it does not seem to me that the insurers’ liability would be unreasonably extended by recognising that, from time to time and for many possible reasons, a temporary uncoupling of the component parts of an articulated vehicle may be necessary.  Despite the valiant efforts of senior counsel for the second third party, a restriction of cover to accidental uncoupling would in my view be far too narrow and would fail to reflect the actual wording of the definition.  As became clear during the hearing, it would be difficult, if not impossible, to express such a restriction without effectively rewriting the whole definition.  In any event, contrary to senior counsel’s argument, the concept of “connection” and “disconnection” might be thought to convey more of the flavour of a deliberate act than the more neutral question of whether a trailer was “attached” or not, and that factor also makes it difficult to accept the restriction proposed.  If only accidental uncoupling would permit the required nexus to be maintained, moreover, then in the context of articulated vehicles it is not easy to see how loading and unloading would ever actually be covered under section 1.

[26]      In summary, therefore, it seems to me that the first defenders’ articulated vehicle, comprising tractor unit and trailer, stopped overnight at Crieff in the course of a commercial journey from Immingham to Aberdeen.  This overnight stop was apparently required to allow the driver to take a mandatory rest period and to avoid the risk of permitted driving hours being exceeded.  In accordance with common practice (although this was not what the employers actually envisaged), the trailer unit was left in a lit street while the driver took the tractor unit to his own home.  The trailer was still loaded;  both parts of the articulated vehicle were in fully roadworthy condition;  the journey to Aberdeen was to be resumed within a matter of hours;  and in the whole circumstances I am satisfied that, at the time of the pursuer’s accident, the parked trailer was still the tractor unit’s “one trailer” within the policy definition, and that the temporary disconnection or detachment was expressly provided for.

[27]      Turning to the matter of “using” under section 1, I am again persuaded that the second third party’s approach is too narrow and cannot be sustained.  In a road traffic context, especially with motor insurance in mind, the authorities confirm that the concept of “use” is very wide and goes much further that the physical act of driving.  In Elliot, Tudhope, Swan, and Pumbien, even undriveable vehicles parked on public roads have been held to be “used” for the purposes of insurance and MOT offences, and as the Lord Justice General observed in Tudhope the reason for this is that such vehicles may still be a source of danger, and possible injury, to third party road users.  The decision in Thomas seems to me to be out on a limb here, and in any event to have been more concerned with the question whether the condition of a vehicle was so seized up as to deprive it of the character of a “mechanically propelled vehicle”.  Whether the wheels were locked solid or not, the vehicle on a public road was patently a source of danger to other people, and if there were thought to be any real conflict between the decision in Thomas and the other four cases I would, for my part, have no hesitation in preferring the latter.

[28]      Against that background, and bearing in mind that this is a motor insurance policy where such issues must have been familiar to the second third party at the time of inception, I can see no good reason to hold that the first defenders were not “using” the trailer at the material time.  As part of an articulated vehicle it was parked, not even in a lay-by, but on a lit public street;  it was in roadworthy condition;  on Record the pursuer alleges that under the Road Vehicles Lighting Regulations 1989 it should have been lit;  the consignment of goods destined for Aberdeen were still on board;  the first defenders’ CMR responsibilities subsisted;  and the final part of the journey was shortly to be resumed.  Taking all these considerations into account, I conclude that at the material time the trailer was indeed being “used” by the first defenders as a trailer on the road, and that section 1 of the policy must therefore apply.  The second third party’s alternative construction, by contrast, tending to equate “use” with propulsion or movement, would seem to be at variance with established road traffic law and, as such, improbable.  And in my view such improbability is further confirmed by the fact that on that approach even the tractor unit, or indeed the whole articulated vehicle in its coupled state, would not have been “in use” while Mr Campbell the driver was at home in bed.  If, on the other hand, the tractor unit was somehow still being “used” after disconnection, it would, I think, be very strange if its “one trailer” were not.

[29]      For all of these reasons I hold that the circumstances of the pursuer’s accident fall fairly and squarely within the scope of section 1 of the first defenders’ fleet motor policy, and that the second third party must therefore owe them an obligation of indemnity if, and to the extent that, the pursuer’s claim succeeds.

The AXA policy
(i)         The parties’ submissions
[30]      As previously noted, the first third party concedes that, but for the operation of special condition 7 (the “double insurance clause”), their policy would be engaged in the circumstances of this case.  By reference to authorities such as Weddell v Road Transport and General Insurance Co Ltd 1932 2 KB 562 and Steelclad Ltd v Iron Trades Mutual Insurance Co Ltd 1984 SC 71, the parties are also in agreement that an operative “double insurance clause” may serve to negate or reduce any liability of the entitled insurer where the same risk is found to be covered under a second policy.  However, if two policies are potentially engaged, and both contain such clauses, then these will essentially cancel each other out so that any liability will fall to be apportioned between them.  As the court held in Weddell and Steelclad, the only alternative approach would produce a wholly unreasonable result, namely that an insured paying premiums to two insurance companies might be denied indemnity under both policies on the basis that each purports to leave the risk solely with the other.

[31]      Against that background, the submission of senior counsel for the first third party was succinct and straightforward.  According to him, if a “double insurance clause” was not matched by an equivalent clause in the other policy under consideration, then there would be nothing to prevent that clause from operating to its fullest extent.  Logically, it was said, the same result should apply where the second insurer did not seek to rely on any such clause appearing in his policy.  This was the situation here, where the second third party’s pleadings contained no attempt to repudiate liability by reference to any double insurance provision in the Chaucer policy.  Indeed the second third party bore to deny all averments by the first defenders and first third party which suggested that double insurance, and shared indemnity, might apply.  There was accordingly nothing to set against the relevant clause in the AXA policy, and on that basis the first third party were entitled to absolvitor.

[32]      In response, both the first defenders and second third party maintained that this argument had come as a complete surprise to them.  The argument was not focused in the first third party’s pleadings, and on the other side of the coin the position of the second third party was perhaps less fully pled than it might have been if this case had (on a previous application) been transferred to the ordinary roll.  Chapter 43 pleadings tended to be unsatisfactory and inadequate at the best of times, containing outline averments with no pleas-in-law, and the second third party should not be penalised for any supposed inadequacy in that context.

[33]      On the positive side, the second third party did indeed insist on the “double insurance clause” appearing as general condition J in their policy, and there was no question of waiving the application of that clause in any question with the first defenders or first third party.  It was the terms of the relevant policies which mattered here, and specifically the insurers’ entitlement to found on particular clauses, and it was significant that in Weddell and Steelclad there had been no reference to pleadings, or to overt repudiation, as a relevant factor.  Consistently with this, the first third party’s “double insurance clause” required consideration of the existence and terms of any other policy which might be engaged, and it was simply not open to the court to close its eyes to these matters.  Over and above that, of course, the parties here had joined issue on the first defenders’ claim to indemnity under both policies, and the second third party had equally denied the first third party’s contention that they alone should be assoilzied.  The terms of both policies were a matter of agreement in the Joint Minute, and the special clause in each of the policies was plainly before the court for consideration.  Judging by certain correspondence in process (productions 7/7 and 7/8), moreover, counsel’s advice to the first third party was to the effect that both policies applied and that a rateable apportionment would be appropriate.  Accordingly, if the Chaucer policy was potentially engaged, the second third party were entitled to proceed by reference to its whole terms and to nothing short of that.

[34]      In this context it was also (rather faintly) argued that, as illustrated by a decision of the Irish Supreme Court in Zurich Insurance Co v Shield Insurance Co Ltd 1988 IR 174, equity might allow one of two applicable policies to be preferred over another.  There, in relation to a road traffic claim which had previously succeeded against road traffic insurers alone, the latter were denied contribution from employer’s liability insurers on equitable grounds.  However, since (i) the facts of that case were somewhat special, with the two policies covering different risks;  (ii) the decision was inconsistent with unchallenged evidence in this case as recorded at paragraph [7] above;  and (iii) the Irish proceedings did not involve a direct claim by the insured for indemnity under both policies, it does not seem to me that much assistance is to be gained from that source and I say no more about it.

(ii)        Discussion and conclusions
[35]      In my judgment the first third party’s claim to absolvitor is not soundly based and cannot be sustained.  The main reason for this is that, where “double exclusion clauses” are in issue, the outcome must depend on a consideration of the policies themselves rather than extraneous materials such as pleadings or correspondence.  The first third party’s “double insurance clause” directs attention to the existence and terms of any second policy bearing to cover the same risk.  The equivalent clause in the Chaucer policy does likewise.  The terms of both policies are a matter of agreement in the Joint Minute, and the first defenders’ primary claim in this preliminary proof is that both policies apply so as to entitle them to indemnity (no doubt on a shared basis) from both insurers.  As in previous cases such as Weddell and Steelclad, the focus must in my view be on the existence and terms of the relevant policies, and where such matters are fully before the court I am unable to accept that anything more is required.

[36]      Even if I were wrong about that, however, I would not be prepared to penalise the second third party on the basis of any supposed inadequacy of their pleadings in a Chapter 43 case.  That Chapter of the Rules of Court notoriously deprives written pleadings of much of their value, and where inadequacy is the rule rather than the exception I am not persuaded that, in the present context, any purely technical challenge should succeed.  This is all the more so where, as here, the technical challenge is not focused in the first third party’s pleadings and seems to have come as a complete surprise to the other affected parties.  In all the circumstances I am quite prepared to accept at face value the second third party’s assertion at the bar that the whole of their policy is relied on and not simply parts of it.

[37]      For all of these reasons, as it seems to me, the first third party can have no legitimate claim to absolvitor on “double insurance” grounds.

[38]      In the result, I have rejected both the second third party’s attempt to escape from this action on “indemnity” grounds, and also the first third party’s parallel attempt along “double insurance” lines.  In these respects no recourse to the contra proferentem rule of construction has in my view been either necessary or appropriate.  The position is therefore, in my opinion, that both policies are engaged here, and that the first defenders are entitled to indemnity from both sets of insurers if, and to the extent that, any award of damages is ultimately made in the pursuer’s favour.  As to any possible apportionment in that situation, it is clear that a material factor would be the £2 million limit on indemnity in the AXA policy.  The pursuer may not, however, succeed on the merits of his claim;  the defenders’ pleas of sole fault, which failing contributory fault, may be upheld;  and the eventual level of any award must at this stage be a matter of speculation.  In these circumstances parties are agreed that, subject to the findings and conclusions set out in this opinion, the case should now be put out By Order for further discussion as to the precise form of the necessary interlocutor.  This seems to me to be a perfectly reasonable request, and I shall therefore accede to it.