Pay out to law abiders

This topic is currently under debate and discussion, as is the issue of lawlessness on the roads of South Africa.

Shocking figures reveal the amount of economic loss and financial suffering of law abiding citizens, brought about by wilful disobedience on our roads. Added to this, is the state of decay of our road systems and infrastructure.

The law of the land

Having said this, we need to differentiate between insurance contract laws, and the laws imposed by the Road Traffic Act.

The Road Traffic Act deals with a number of aspects including, amongst others, driver fitness, fitness of vehicles, vehicle equipment, vehicle loads, speed limits, driving under the influence and general road rules. These rules, as in all countries, are intended to regulate how drivers should behave on South African roads and, where they are not followed, the penalties imposed for infringements.

When rules are broken, authorities have jurisdiction. This is where the dilemma begins to unfold. The policing and application of sanctions on South African roads is not carried out with the same consistency as some foreign markets where there is zero tolerance for ignoring the rule of law and order.

Failing to stop at robots and stop streets has become common place on our roads, and the lack of action or enforcement against offenders has added to the accident carnage that we witness daily. The same applies to more subtle but equally dangerous potentially fatal behaviour like the use of mobile phones without a hands free kit or texting while driving.

The law of insurance

The insurance contract is an agreement between two parties that in return for a premium paid, an insurer will indemnify the insured within the parameters of an agreed contract.

It also outlines circumstances under which the insured will be compensated for losses sustained of a fortuitous nature. The emphasis here is on fortuitous. The contract does not cross into the sphere of the Road Traffic Act but certainly makes reference to a vehicle having to be in a roadworthy condition and the driver having an obligation to exercise a duty of care towards preventing and minimising loss or liability.

Most contracts of insurance also speak to the aspect of wilful or intentional acts as being an exclusion of cover. The insurer, therefore, would be in a position to reject claims where it is found that the insured has not complied with specified contract terms and conditions.

Breach of T’s and C’s

The issue of breach of terms and conditions could become fairly subjective as the driver of a vehicle can deny any liability if the insurer fails to provide solid evidence thereof. This brings us to technology that can certainly measure and score driver behaviour in the form of telematics.

Is this to be considered a viable option and will the customer accede to installing a suitable device? This could have benefits for the insured as well as the insurer who would be in a position to reward the driver who complies with the rules of the road and observes policy terms and conditions.

The broker role

So what role could the broker play in this dilemma?

It is certainly not an easy situation to deal with and requires that the broker and insurer point out - at all times - to the insured the policy terms and conditions and, particularly, the specific exclusions or any special clauses that have been imposed. It is important that there exists ongoing clarity around terms and conditions of cover.

However, in general, improved visibility of policing is an absolute requirement and there could quite well be a need for insurers to adopt a more strict approach to claims where the insured has not complied with the rules of the road.

As a society we cannot stand by and allow lawlessness to pervade our roads.