The inability of police officers to breathalyse a driver who may be under the influence means an insurer has to rely on circumstantial evidence, such as statements from witnesses, to prove intoxication. However, things will not turn out well for the insurer if the assessor asks the witnesses leading questions, or they lie.
This is what transpired in a case that came before the Ombudsman for Short-term Insurance (Osti) after the insurer rejected a claim because it said the policyholder was under the influence at the time of the accident.
According to the insured, Mr Y he stopped at a stop street, and then accelerated into the intersection after checking whether it was safe to proceed. A black vehicle driven by Mr X collided with the rear door of Mr Y’s red vehicle.
The insurer’s assessor interviewed three witnesses: two police officers who had attended the accident scene and a passenger in Mr X’s vehicle.
The passenger said she and Mr X went to check on the driver of the red vehicle. As they approached Mr Y’s vehicle, he started fighting with them and seemed intoxicated. Mr Y reeked of alcohol.
The first police officer said Mr Y did not smell of alcohol, but Mr Y’s demeanour demonstrated that he was tipsy. Mr Y’s eyes were red, and he was rude and arrogant. A breathalyser test could not be conducted due to the Covid-19 regulations.
The second police officer said Mr Y was not sober and Mr Y was very arrogant. Mr Y was not unsteady on his feet but was slightly moving backwards and forwards.
Passenger lied
Mr Y disputed that he was under the influence of alcohol. He said he was a paramedic and had to work long hours during the pandemic. Mr Y submitted the accident may have happened due to fatigue. He also stated that during the accident, his head hit the steering wheel or window, disorientating him.
Mr Y provided the Osti with an affidavit from Mr X’s passenger in which she admitted that the information she provided to the assessor was false. The passenger said she was not in close proximity to Mr Y, so she could not have smelled him.
The passenger said she provided false information because she was under the impression that the insurer was going to pay for her medical expenses.
Mr Y also provided the Osti with an affidavit from Mr X in which he confirmed that the evidence his passenger provided to the assessor was incorrect and false.
Mr X said the passenger was sitting in the vehicle because her arm and leg were hurt. He also stated that Mr Y did not smell of alcohol.
Leading questions
When the Osti reviewed the recordings of the assessor’s conversations with the witnesses, he found that the assessor repeatedly asked both police officers leading questions. They did not provide their own explanations about why they thought Mr Y was under the influence of alcohol.
The Osti noted that the assessor did not pose any questions to the police officers about Mr Y’s head injury or considered whether this could have affected his demeanour.
He also found that the passenger had repeatedly been asked leading questions by the assessor.
The Osti found there was no evidence that Mr Y consumed alcohol before the accident.
He concluded that the insurer had not discharged its onus to substantiate its rejection of the claim. Accordingly, the Osti recommended that the insurer settle the claim, and the insurer agreed.
