South African motorists can still see a vehicle insurance claim paid out even if they were found to be speeding.
This is according to a recent case submitted before the Ombudsman for Short-term Insurance (OSTI), where an insurer rejected a claim for damages caused by a collision with an animal on the basis that the driver was over the speed limit and had failed to exercise reasonable care.
The facts of the case
A motorist was travelling down a road at night when he collided with a cow crossing the street, which damaged their car in the process.
When the insured approached his provider to pay for the damages, the claim was rejected on the grounds that the individual had exceeded the speed limit, creating a situation where he was unable to avoid the oncoming hazard.
Importantly, the client did not dispute the speed at which he was travelling, but did state that he was not aware of the speed limit applicable to the road in question.
Adding to this, the motorist argued that his speed was irrelevant as he could not see the road ahead, owing to a third-party vehicle in the oncoming lane blinding him with its headlights.
To resolve the dispute, the insurer approached an independent expert who retrieved the vehicle’s diagnostic data to determine its speed and consider the circumstances around the accident.
Evidence was provided to show that the driver was travelling at 130km/h when the incident took place, on a road where the speed limit was 80km/h.
The insurer also highlighted the following information:
- The road was poorly lit
- There is a sign in the opposite direction warning of animals crossing the road
- An 80km/h speed limit sign was posted 13km before where the collision took place
- The insured travelled on the same road earlier that day and should therefore be familiar with the road and its restrictions
The independent expert added that the vehicle was travelling between 125km/h and 135km/h, which was 56% to 69% faster than the speed limit.
As a result, the car’s stopping distance was increased by approximately 58 metres.
“By doing that, an inescapable emergency was created by the driver’s own tortious conduct. When a driver engages in an activity in which certain emergencies are likely to arise, the driver must be prepared to meet them,” said the expert.
“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.”
The insurer then used these facts to reject liability for the claim, stating that the motorist had failed to apply the necessary due care.
The matter was brought before the OSTI, and since it was clear that the insured was speeding, the new assessment was to determine whether the individual’s actions could be considered a failure to apply necessary due care and precaution.
The insurance provider has to prove that the client intentionally disregarded the maximum speed limit, and then show that the incident would not have occurred if the driver had travelled at the right speed.
In its findings, the OSTI said that several aspects of the insurer’s case were left wanting.
It was not disputed that the motorist was blinded by an oncoming vehicle and did not see the cow.
Additionally, the sign warning of animals was only present on the opposite lane, meaning it could not be considered relevant.
The OSTI also argued that the motorist cannot be considered familiar with the road having only travelled on it once before the collision.
On the insurer’s end, it could not speak to the position, speed, or visibility of the cow on the road, either.
“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 Nekecia van Niekerk, Assistant Ombudsman.
The OSTI also questioned the expert’s findings, as the diagnostic showed no record of reactionary manoeuvres to avoid the hazard, and little data was available to calculate distances accurately.
“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,” it said.
In its conclusion, the OSTI stated that an insurer cannot merely reject a claim without providing proof that the actions of the driver are material to the loss.
It reasoned that the insurer had not discharged its onus on a balance of probability and that it recommended that the claim should be paid out.
The insurer conceded the OSTI’s recommendation and settled the motorist’s claim.
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