Crashing into cows and having one too many – How to win a car insurance battle in South Africa

The Ombudsman for Short-Term Insurance’s (OSTI) latest Annual Report, published this July, revealed that short-term insurers in the country received over 12,000 formal complaints over the course of 2023.

The majority of these complaints arose from declined claims, with insurers denying liability on the grounds of the insured party stepping outside the terms and conditions of the contract.

The report involved several case studies pertaining to vehicle insurance disputes in which the insured party was declared the victor, which are of interest to the average consumer who may be stuck in a similar scenario.

The cow conundrum

The OSTI report highlighted a recent dispute between a motorist and an insurer who denied his claim after he crashed into a cow when it was crossing the road at night.

The insured submitted a claim for damage to his vehicle following a collision with the animal, however, the insurer declined liability on the basis that the driver failed to apply reasonable care and precaution to prevent the incident from occurring.

In his complaint to the OSTI, the insured did not dispute the speed at which he travelled but stated that he was unaware of the speed limit applicable to the road.

He was further of the view that speed could not be considered the cause of the incident as it occurred when a third-party vehicle, travelling in the opposite direction, blinded his vision with its lights and he did not see the cow on the road and consequently collided with it.

The insurer obtained the services of an independent expert who retrieved the vehicle’s speed from the diagnostic data and further considered the circumstances surrounding the event.

The insurer provided evidence to show that the motorist was driving at approximately 130km/h when the incident took place.

It also proved that the road was poorly lit, there was a sign 13km before the collision confirming an 80km/h speed limit, there was a sign in the opposite direction warning of the prevalence of cows on the road, and the driver travelled that same road earlier in the day and as such was familiar with it.

The insurer therefore contended that the driver created an inescapable emergency through his own tortious conduct.

“Had the incident driver opted to travel at the speed limit or appropriate speed then he would have been in a better position to observe animals, reduce the vehicle speed, and take evasive action or bring the vehicle to a complete stop,” said the insurer.

“The high speed at which the driver opted to travel at resulted in a greater stopping distance and inability to cope with the conditions and vehicle dynamics.”

Based on these findings, the insurer rejected the claim, stating that the insured failed to apply the necessary due care required when operating a vehicle in line with the policy exclusions.

This forced the motorist to approach the OSTI for assistance.

“While it was clear that the insured had exceeded the speed limit applicable to the road, it was essential for OSTI to determine whether the insured’s actions could be considered a failure to apply the necessary due care and precaution,” said Assistant Ombudsman Nekecia van Niekerk.

“The issue to be determined was whether the insurer had shown, on a balance of probability, that the insured’s conduct was reckless.”

Van Niekerk explains that the onus is on the insurer to prove that the insured deliberately or intentionally disregarded the maximum speed limit, and to show that, had the insured travelled at the required speed, the incident would not have occurred.

OSTI conceded that the insurer’s investigation did supply inarguable facts, however, there were several aspects that were left wanting from its case.

“It could not merely be said that a collision would have occurred due to the speed travelled as the speed resulted in an increased reaction time by the insured without factual evidence to support this,” said Van Niekerk.

Since the road marking warning drivers of the prevalence of cows was in the opposite direction of the one the insured party was travelling, it could not be considered relevant to the insurer’s argument.

The insured could further not be considered familiar with a road after only having travelled it once before the collision.

The insurer could also not speak to the position of the animal on the road, the speed of the animal, or the visibility of the animal.

“Based on the undisputed facts, it would have been impossible to predict the movement of the animal or for the driver to foresee the presence of an animal on the road,” said Van Niekerk.

“OSTI found that it was essential for the insurer to take cognisance of the fact that there were several intervening factors at play, and that it would be unreasonable to say that by merely driving slower, the animal would have been visible, and the collision would subsequently have been avoided.”

For an expert to determine voidability, factors such as the point of reaction, point of collision, final resting position, as well as the movement of the object collided with must be considered.

As such, the fact that no reaction manoeuvre was recorded by the diagnostics data and little to no information was available regarding the animal would have made it impossible for the expert to calculate the distances and to accurately confirm that the insured could have avoided the accident.

“OSTI reminded the insurer that the opinion of an expert does not automatically deem a claim accurately rejected and excessive speed does not inevitably amount to recklessness,” said Van Niekerk.

“Each matter is to be considered on its own set of facts for it to be determined whether it is reasonable to deny liability.”

The insurer had failed to show that the insured foresaw the possibility of the oncoming vehicle obstructing his visibility with its headlights and that he intentionally continued driving at the speed noted which then resulted in the collision with an animal.

Furthermore, the insurer failed to show that travelling at the required speed limit would have made the incident avoidable, despite the intervening factors presented.

“OSTI found that the insurer had not discharged its onus on a balance of probability, and a recommendation to pay the claim was issued,” said Van Niekerk.

“The insurer conceded to OSTI’s recommendation and settled the claim.”

Under no influence

Another case study by OSTI involved an insured party who was in a single-car accident on his way home from a party where he had a few drinks.

The insured submitted that on the day of the accident he had attended his girlfriend’s home for a party.

It was around 09h00 in the morning when he consumed his first beer, and by 15h00 he had his fourth and final beer, a fact he did not attempt to hide from the insurer.

He left his girlfriend’s place at approximately 19h45 after being confident that the effects of the alcohol had worn off.

Minutes later, he saw a pedestrian walking in the middle of the road as he rounded a corner, and in an attempt to take evasive action, he lost control of the vehicle, veered down an embankment, and collided with a tree.

The insurer rejected the claim on the grounds that the driver was under the influence of alcohol at the time of the accident.

The facts leading up to the loss were confirmed by the insurer’s assessor, who essentially said that the insured did not wait long enough to sober up before he got into his car to drive.

Based on the assessor’s report, the insurer rejected the claim because the driver was argued to have been under the influence of alcohol.

It further noted that circumstantial evidence may be taken into account to support the rejection of a claim on the basis of driving whilst under the influence of alcohol.

Once again, the driver contacted OSTI for assistance after being dissatisfied with his insurer’s decision.

“The issue for determination in this matter was whether the insured was, on a balance of probabilities, under the influence of alcohol,” said Assistant Ombudsman Zanele Makamba.

“The onus was on the insurer to prove this.”

In order to discharge this onus, the insurer had to demonstrate that the complainant did, in fact, consume alcohol on the day of the incident; and was influenced by such consumption.

In considering the matter, OSTI referred to two past cases in which supposedly inebriated drivers went up against their insurers.

OSTI found that it was a common cause that the insured had consumed about four to five beers during the day of the accident.

“The insurer correctly submitted that circumstantial evidence must be taken into account,” said Makamba.

“It did not however provide any circumstantial evidence to support its submission that the insured had been influenced by the consumption of alcohol on the evening in question.”

Furthermore, there were no eyewitness accounts attesting to the fact that the insured’s behaviours exhibited that of someone under the influence.

“The insurer relied on general facts about alcohol consumption,” said Makamba.

“These general facts do not speak to the state of the insured at the time of the incident. It was not clear whether the statements made regarding alcohol were factual, and neither was the source or the expertise of the person making them established or proved. ”

As such, all the insurer could show was that the insured had consumed alcohol, but it failed to provide any evidence that this influenced him or was material to the loss.

“The insurer, therefore, did not prove its case on a balance of probabilities, and the office recommended that the insurer approve and settle this claim,” said Makamba.

“The insurer accepted our recommendation and settled the claim in full.”