In a case before the Ombudsman for Short-term Insurance, the insured submitted a claim for vehicle damage after they collided with a cow.
The insurer rejected the claim on the basis that the insured failed to apply reasonable care and precaution to prevent the incident.
In the complaint, the insured did not dispute the speed at which he travelled, stating that he was not aware of the speed limit applicable to the road.
The insured added that the speed was irrelevant as he could not see the due to a third-party vehicle travelling in the opposite direction, blinding his vision with its lights - meaning he could not see the cow.
The insurer acquired the services of an independent expert who retrieved the vehicle’s speed from the
diagnostic data of the vehicle, and consider the circumstances surrounding the accident.
The insurer provided evidence to show that the insured vehicle was travelling 130km/h when the incident took place.
The insurer also highlighted the following information:
• The road was poorly lit.
• There was a sign 13 km before the collision confirming the maximum speed to be travelled on the road as 80 km/h.
• There was a sign on the opposite direction warning of the prevalence of cows on the road.
• The road was travelled earlier in the day by the insured, and he was, therefore, familiar with the road
and the applicable road restrictions.
The independent expert appointed by the insurer added the following:
“The risk vehicle was travelling a maximum speed of between 125 km/h and 135 km/h within 5 seconds
before the crash, and this is between 56% and 69% faster than the speed limit for the road.
“The driver increased the stopping distance by approximately 58 meters by driving at 130 km/h.
“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.”
“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.”
With these facts, the insurer rejected the liability for the claim on the basis that the insured failed to apply the necessary due care.
Since it was clear that the insured travelled over the speed limit, the OSTI had to determine if the insured’s actions could be considered a failure to apply the necessary due care and precaution.
“The issue to be determined was whether the insurer had shown, on a balance of probability, that
the insured’s conduct was reckless,” said Nekecia van Niekerk, Assistant Ombudsman.
The insurer has to prove that the insured intentionally disregarded the maximum speed limit.
It then had to show that the incident would not have occurred if the vehicle had travelled at the right speed.
Findings
The OSTI said that there were several aspects left wanting in the insurer’s case, stating that the accident only occurred due to the speed travelled without evidence.
It was undisputed that the insured was blinded by an oncoming vehicle and did not see the animal.
Moreover, the road sign warning of the presence of animals was only present on the oncoming lane, meaning it could not be considered relevant to the insured.
In addition, it was argued that the insured could not have been familiar with the road after only having travelled on it once before the collision.
The insurer could also not speak to the position, speed or 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.”
Moreover, the OSTI questioned the insurer’s experts, as the diagnostic did not record a reaction manoeuvre, and little data was available for the expert 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.”
“Each matter is to be considered in its own set of facts for it to be determined whether it is
reasonable to deny liability.”
“An insurer cannot merely reject a claim without providing proof that the actions of the driver are
material to the loss.”
“OSTI found that the insurer had not discharged its onus on a balance of probability, and a
recommendation to pay the claim was issued. The insurer conceded to OSTI’s recommendation
and settled the claim.”