WHY THE OTHER DRIVER’S THIRD PARTY INSURANCE WILL NOT PAY (by Tarran Dookie)
As a motorist you effect third party insurance on your car with the knowledge that should you get involved in an accident and should you cause some loss or damage your insurance would pay the third party for the loss or damage. As the third party you would expect the other driver’s third party insurance to respond to your claim, especially if it is clear that the other vehicle struck your vehicle. However, there are cases where loss or damage has happened and you are in no way to be blame for what has happened and yet you are not compensated by the other driver’s insurer. How can this happen? Before you exclaim that insurance is a rip-off let us examine some of these situations where your claim may be denied.
Let us look at situations where your vehicle has been struck by another vehicle and you were clearly not at fault. You must first appreciate that the other driver’s insurer will only pay for your damage if their insured is at fault. The law of negligence is of significance in these matters. The other driver must have been negligent in some way before his insurer pays for your damage.
THE OTHER DRIVER LOST CONTROL OF HIS VEHICLE
The other driver lost control of his vehicle in circumstances that do not clearly establish his negligence. An example is where high winds cause a branch from a tree to fall on the hood of a moving vehicle and this causes the driver to lose control of the vehicle and he collides with another vehicle. Sudden and severe flooding may leave deposits of mud on the roadway causing a vehicle to pick up a skid and this may cause the accident even though the driver may have been exercising due care and attention and his tyres may be in good condition. There have also been cases where a driver has lost control because of oil spilt on the road and no one seems to know how the oil got there.
Other examples of drivers losing control of their vehicles due to circumstances beyond their control include animals struck while suddenly running across the road and causing an accident or something falling from a goods carrying vehicle and suddenly obstructing the view of the driver behind causing him to collide with a third party vehicle (of course, the driver of the goods carrying vehicle would be liable but may have driven off and cannot be traced).
In the circumstances outlined above the other driver is not at fault. He may in no way be negligent. His insurer may deny payment to the third party whose vehicle has suffered damage.
THE OTHER DRIVER HAD A SUDDEN MEDICAL EMERGENCY
If a driver has an ailment which required that he should have taken some medication and he did not do so or he ignored the symptoms of his medical ailment and drove his vehicle regardless, then he may be liable if he causes an accident and it is attributed to his medical condition. The law may still find him negligent.
However, the other driver may have a sudden medical emergency where he had no prior warning. Think of a heart attack or stroke. He could not have foreseen the situation. The sudden incapacitating event may cause an accident and present a defence to an action brought against him for negligence. If he is not found negligent, his insurer would be under no obligation to pay the third party’s claim.
THE OTHER VEHICLE WAS A FIRE TRUCK OR AMBULANCE ATTENDING TO AN EMERGENCY
Where the other vehicle is a fire truck or ambulance or other public services vehicle attending to an emergency and that vehicle struck a third party’s vehicle it is difficult to bring a successful claim against the insurer of the emergency vehicle, especially if the sirens and flashing lights were on. That is not say that it is impossible to prove negligence since drivers of emergency vehicles do have an obligation to drive with due care and control. However, in such a situation the standard for proving an emergency vehicle driver is liable is much higher than the standard for other drivers. The third party has to establish not mere negligence but gross negligence, almost tantamount to recklessness.
THE OTHER VEHICLE WAS A STOLEN VEHICLE
If the other vehicle that struck your vehicle turns out to be a stolen vehicle the chances of the insurer of the said stolen vehicle compensating you are indeed slim. The thief clearly was an unauthorised driver who had no permission from the owner to drive the vehicle.
The law is always evolving and it should be pointed out that there are cases where the owner of a stolen vehicle may still be considered negligent. A good example is if he left the keys in the vehicle with the engine running and the thief drives away with the vehicle and causes an accident.
THE OTHER VEHICLE WAS DRIVEN BY AN UNAUTHORISED DRIVER
The majority of motor vehicle insurance policies generally cover the insured and anyone driving the vehicle with his or her consent although many contain a provision that excludes persons who are under the age of 25 or with less than two years driving experience. In spite of this restriction the legislation governing motor insurance obligates an insurer to settle a third party claim even if the vehicle was driven with the permission of the insured by someone under the age of 25 or with less than two years driving experience.
The position is different if the policy is a ‘named drivers policy’. Coverage will only apply if a named driver is driving the vehicle. There will be no coverage if someone other than the named drivers is driving the vehicle. The recent judgement (2012) of the Privy Council in the Presidential Insurance Company Limited (Appellants) v Resha St. Hill (Respondent) confirms this.
Therefore, if the third party vehicle is struck by another vehicle and that vehicle was being driven by someone who is not a named driver and the policy is a ‘named drivers policy’, the insurer can deny the claim.
WHAT IF YOU HAVE COMPREHENSIVE COVER?
If you have comprehensive cover on your vehicle your insurer would most likely reimburse you for any damage to your vehicle sustained in the circumstances outlined above. However, if your insurer cannot recover from the other driver’s insurer because their driver was not negligent then your no claim discount would be affected. It does not matter that you are not to blame; the discount is for ‘no claim’ not ‘no blame’. Furthermore, an excess would apply and that too would not be recoverable from the other driver’s insurer in the situations mentioned.