Deciding insurance disputes involving assessment of a "driving under the influence" exclusion
Expedited process
Usually, FOS makes a Recommendation before making a Determination of a dispute. However, paragraph 8.6 of the Terms of Reference (TOR) provides that FOS may proceed to a Determination, without a Recommendation first being made, where FOS considers that this would be appropriate.
FOS considers that disputes which involve an assessment of whether an FSP has correctly denied liability for a claim because the applicant was "driving under the influence" should be expedited and proceed to a Determination by an Ombudsman or Panel without a Recommendation first being made.
Information to be provided by FSP
Where an FSP seeks to deny liability for a claim under an insurance policy on the ground that the claim is excluded because the insured was "driving under the influence", the FSP will need to provide FOS with the following:
- Statements from witnesses who observed the driver of the insured vehicle at relevant times, such as just prior to or after the accident
- If a witness:
- says the driver appeared to be under the influence of alcohol or drugs and
- has appropriate expertise in assessing the effect of alcohol or drugs on an individual,
- A statement from the driver of the insured vehicle setting out their travel and activities in the 12 hours leading up to and including the time of the accident. This statement should include:
- the number, types and quantities of alcoholic drinks and/or drugs they consumed and when they consumed them
- the places they went to (such as homes, restaurants, bars and night clubs) including at what time they went and for how long they stayed, and
- their explanation of the events leading up to the accident.
- Statements or reports from expert scientific or medical witnesses who have assessed the information provided by:
- witnesses who observed the driver of the insured vehicle at relevant times, such as just prior to or after the accident
- the driver of the insured vehicle, and
- the effect of any breath, saliva or blood analysis tests administered to the driver of the insured vehicle including a description of the nature of the tests and the time and date the tests were administered and assessed.
Information to be provided by applicant
The applicant needs to provide a statement from the driver of the insured vehicle setting out their travel and activities in the 12 hours leading up to and including the time of the accident. This statement should include:
- the number, types and quantities of alcoholic drinks and/or drugs they consumed and when they consumed them
- the places they went to (such as homes, restaurants, bars and night clubs) including at what time they went and for how long they stayed, and
- their explanation of the events leading up to the accident.
Relevant legislation
In assessing a dispute, FOS takes into consideration relevant legislation. Legislation that is relevant to FOS's assessment of whether an FSP was entitled to deny a claim because the insured was "driving under the influence" includes:
- ACT: Road Transport (Alcohol and Drugs) Act 1977 s41A
- NSW: Road Transport (Safety and Traffic Management) Act 1999 s37
- NT: Traffic Act s48
- SA: Road Traffic Act 1961 s47C
- TAS: Road Safety (Alcohol and Drugs) Act 1970 s21
- VIC: Road Safety Act 1986 s58A
This legislation may prohibit or limit the admissibility in a court of the outcome of breath and/or blood analysis tests as evidence which proves intoxication or drug use. FOS is not a court so we are assessing information to identify what most likely occurred. Therefore, while we take into account the limits imposed by this legislation, we may still reach a view that on balance, the information available to us supports the conclusion that the driver of the insured vehicle was driving under the influence.
In all cases of this sort we also take into consideration the effect section 54 of the Insurance Contracts Act 1984 may have on the applicant's claim.