23 The trial judge found that Constructions' claim under the CU Construction Policy arose out of the use of the truck in work undertaken by or on behalf of Constructions within exclusion 6(b). The appellant HIH does not dispute this, indeed the proposition is embraced in connection with an alternative argument advanced in the appeal (see below). However, HIH challenges the respondents' joint invocation of exclusion 6(b) on the basis that the exclusion only operated if third-party insurance for the truck was required by statute to be effected by the insured making the claim (ie Constructions).
24 It was submitted that the words emphasised were to be implied because Constructions would otherwise be left without cover with respect to Mr Knight's successful claim on it. Constructions was unable to claim under the third-party policy because it was neither the owner or driver of the truck (cf Motor Accidents Act 1988, s9), nor could it claim under its own workers compensation policy because Mr Knight was not its employee.
25 Apart from its circularity, the fallacy in this reasoning is that it seeks to construe the CU policy by reference to an imputed intent of the Club to secure all-embracing insurance cover for its builder. This is an impermissible method of construction of a free-standing policy. More importantly, it fails to recognise that, as a party to the building contract, Constructions expressly recognised that the "principal-arranged insurance" would contain conditions and exclusions which Constructions contracted that it would accept (see cl 8.11). Constructions is covered by the CU policy, but only to the extent that the policy provides.
26 In my view, there is no basis for reading unexpressed words into exclusion 6(b) that would expand the exclusion. I read the words "in respect of which insurance is required by virtue of any legislation relating to motor vehicles" as qualifying the words "any Vehicle or any attachment to any Vehicle" at the opening of subclause (b) (cf the unqualified form of subclauses (a) and (c)). In that context, it is perfectly understandable why the drafter of clause 6 paid no attention to the identification of the persons upon whom such requirement lay.
27 Indeed, the Motor Accidents Act 1988 was similarly insouciant, because it imposed no direct duty on the owner of a vehicle to take out third-party insurance. Rather, s8(1) penalised any person who used, or who caused or permitted another person to use, an uninsured vehicle on a public street (subject to irrelevant exceptions). This said, there is a loose sense in which it can be said that the statutory requirement to take out a third party policy lay upon Landscapes as the owner of the truck. This gives plenty of work for exclusion 6(b) without the need to strain it by expanding the exclusion through implying additional words into it. If an accident involving the truck attracts third party cover for the owner or driver, so be it. But if it does not, that is no reason to expand the scope of the CU policy to fill some suggested gap in coverage.
28 The trial judge was correct in concluding that the CU Construction Policy did not respond to Constructions' claim.
29 This conclusion renders it unnecessary to address HIH's submission that the cover of the HIH policy is withdrawn because of the operation of condition 7 of the HIH policy. Since, however it was fully argued I shall address some remarks to the topic.