Two drunk driving insurance cases in South Africa that had two very different outcomes

 ·12 Dec 2021

Most vehicle insurance policies contain exclusions, which entitle insurers to decline liability where an incident driver is under the influence of alcohol, or where a driver’s blood-alcohol level is over the legal limit, or where a driver fails a breathalyser test.

New rules, under the National Road Traffic Amendment Act, will effectively introduce the total prohibition on the use and consumption of alcohol by all motor vehicle operators on South African public roads. The bill was introduced to National Assembly in May 2020, and is currently being deliberated by lawmakers.

For now, however, drivers are still able to operate a vehicle in South Africa if they’ve been drinking, as long as their blood alcohol content is below 0.05 grams per 100 millilitres, and breath alcohol concentration below 0.24g/1,000ml.

Despite this, insurers include very explicit exemptions in policies stating that motorists are not covered for incidents where the driver is clearly under the influence of alcohol and drugs, has a concentration of alcohol in their blood exceeding the legal limit or fails a breathalyser test.

When rejecting insurance claims, the insurer bears the burden of proving the exclusion.

With the onset of the Covid-19 pandemic, the use of breathalyser tests has dropped off the list of tests officers can administer on the scene of an accident. This had led to insurers having to rely on circumstantial or witness evidence to make determinations in claims.

The Ombudsman for Short-Term Insurers has highlighted two case studies in the last year, where it had to step in and iron out the process and make a call based on the more limited evidence at its disposal.

Both cases involved car accidents where the driver’s claims were rejected by their insurance companies and were sent to the ombud for assessment. Without hard evidence to go on, the ombud had to rely on witness accounts and interviews to determine the truth.

Case 1

In the first case, a motorist was involved in a car accident, where they changed lanes at the same time the car in front of them did, causing them to return to their previous position. However, it was at this point that they were rear-ended by a car behind them, leading to an accident.

With the insurance claim, the driver said they had not consumed alcohol. A breathalyser test could not be performed due to Covid-19.

The insurer rejected the claim, saying the driver was in fact under the influence of alcohol. The insurer appointed an assessor to the case who interviewed four witnesses, all of whom said they could either smell alcohol on the driver’s breath or saw them exhibit drunken behaviour. They also claimed they saw the driver throw alcohol bottles into the nearby veld.

The insurer also had an expert assess the scene and determined that the driver was speeding – going as fast as 190km/h.

With only witness accounts and the insurer’s assessment to go on, the ombudsman determined that, on the balance of probabilities, the driver was indeed under the influence of alcohol and that this was the cause of their behaviour leading to the accident.

It upheld the insurer’s rejection of the claim.

Case 2

In the second case, a driver stopped at an intersection and proceeded to cross after determining it was safe to do so. They were then hit by another vehicle crossing through the intersection.

With the insurance claim, the driver said they had not consumed alcohol. A breathalyser test could not be performed due to Covid-19.

The insurer rejected the claim, saying the driver was in fact under the influence of alcohol. The insurer relied on three witness testimonies from the scene, including the passenger of the other vehicle and two police officers who responded.

The passenger of the vehicle said that the driver ‘seemed intoxicated’, was confrontational and that they smelled of alcohol. The police officers said that the driver did not smell of alcohol, but was confrontational, and seemed ‘tipsy’, with a slight sway – though they remained steady on their feet. The officers conceded it may have been due to shock.

The insurer argued that the driver did not stop at the stop street, thus, the alleged alcohol consumption had affected their driving ability.

In dealing with the case, the ombudsman sought further information from the driver and the insurer. The driver managed to submit a signed affidavit from the passenger witness, retracting their claim of smelling alcohol on the driver’s breath. The passenger said their false testimony was based on the belief that insurance would pay out for their injuries sustained in the accident.

The driver also said that they had hit their head during the accident, which had dazed them, explaining their behaviour.

Reviewing the assessment recordings with the police officers, the ombud also found that the insurer’s assessor repeatedly asked both police officers leading questions that were entangled with presupposed and suggestive answers.

The police officers did not provide their own explanations about why they thought the driver was under the influence of alcohol, the ombud found, but rather led to the conclusion by the assessor.

The ombud overturned the insurer’s rejection of the claim.

How the ombud deals with these cases

The ombud said that with both cases, it had to rely on witnesses in lieu of hard evidence to help determine the outcome – but a lot goes into the investigations.

“The OSTI considers all the evidence presented by both parties to the dispute as well as the specific policy terms and conditions,” it said.

The insurer must prove the following:

  1. That the incident driver was under the influence of alcohol when the accident occurred.
  2. That the incident driver’s level of intoxication influenced or impaired his/ her driving ability.

“Evidence, such as blood or breathalyser test results, may be submitted by the insurer. Where the insurer is unable to provide such test results, it may rely on circumstantial evidence which can include, amongst other evidence, hospital records, witnesses’ and/or attending police officers’ statements describing the driver’s demeanour.”

The OSTI pointed out that the considerations of fairness and equity only have application in exceptional and warranted cases. Often, the applicable legal principles are adequate to resolve disputes.

“Where applied, the considerations of fairness and equity must be balanced, in favour of both parties. OSTI is not supposed to approach matters from a consumer-favouring perspective, as is often erroneously believed,” it said.

The ombud stressed that each matter is dealt with on its own merits and no precedent is created by the findings in highlighted cases. “These case studies are intended to provide guidance and insight into the manner in which the OSTI deals with complaints,” it said.

Read: The types of businesses that receive the most consumer complaints: ombud

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