“The expert did not consider objective evidence at the accident scene and there were substantial inconsistencies in the measurements he used to calculate the speed,” OSTI said.
Data from the on-board computer and the vehicle tracking reports indicating the speed a vehicle was travelling when the accident occurred are generally accepted.
“The legal position is that the insurer must prove that the insured acted recklessly.”
But here’s the thing — speeding on its own does not necessarily mean the insured was reckless.
“The insurer must put forward a convincing argument on which to conclude that the driver foresaw the possibility of an accident and deliberately courted the danger by taking measures which the driver knew were inadequate.
“Or that the driver recklessly reconciled themselves with the danger.
“It is unlikely that a driver will admit recklessness. Therefore, it may be determined by inferential reasoning based on the facts of the case.”
Bottom line — if your insurer rejects your claim on the grounds that you were speeding, and you feel that’s unfair, lodge a complaint with OSTI so the facts can be impartially considered.
Make sure you do this before returning a 'change of heart' online purchase
Thanks to the Electronic Communications and Transactions Act, if you buy something online you have the benefit of a seven-day cooling off period.
That means you get to change your mind about the product and send it back — at your cost, unless the company chooses to fund the return — for a refund.
That’s provided it’s in a resaleable condition.
So here’s a key tip, courtesy of Julie who learnt it the hard way: take photos of the item before you return it, as proof that it was in a resaleable condition when it left your hands.
Don’t even think of buying a car privately before doing this
Consumer journalist Wendy Knowler’s 'watch-outs of the week'
In this weekly segment of bite-sized chunks of useful information, consumer journalist Wendy Knowler summarises news you can use:
Don’t even think of buying a car privately before doing this
If you buy a car from a private individual, as opposed to a dealership, you are taking a major risk as the Consumer Protection Act does not cover private sales.
Peter bought a car “privately” and less than a week after exchanging good money for it the diff “went”, as he put it in an e-mail to me.
“When I bought it, nothing was mentioned about the diff. The vehicle was sold voetstoots.
“The diff is being repaired — who is responsible for the costs of this repair?
“I need the vehicle for my garden service and as a consequence of this problem I have no means of working.”
Sadly, Peter has no recourse. What he should have done is have the car checked by a technical assessment company such as Dekra or the AA before committing to the purchase. Worth every cent!
'You were speeding!' — insurers’ latest favourite claim denial
It’s called the “reasonable precautions” clause, and an increasing number of car insurance claims are being rejected because of it, the Ombudsman for Short-Term Insurance (OSTI) has warned.
An analysis of complaints sent to the ombud in November 2021 revealed this trend.
The clause requires policy holders to take “all reasonable care” and reasonable precautions to prevent or minimise loss, damage, death, injury or liability. Breaching it warrants rejection of a claim.
There are various reasons why an insurer may use this clause, said senior assistant ombudsman Ayanda Mazwi, but it’s mainly relied on in cases where the insurer alleges that their client was speeding.
But can they do that?
When faced with such a dispute, the OSTI considers whether the insured was speeding.
“The insurer carries the burden of proving the breach or exclusion,” the OSTI said. “It may rely on evidence such as data downloaded from the vehicle’s on-board computer, vehicle tracking reports and experts in accident reconstruction.”
In a case before the OSTI, an insurer was ordered to pay a claim — having previously rejected it — after the adjudicators found that the conclusions put forward by the insurer’s accident reconstruction expert were not based on accurate facts.
“The expert did not consider objective evidence at the accident scene and there were substantial inconsistencies in the measurements he used to calculate the speed,” OSTI said.
Data from the on-board computer and the vehicle tracking reports indicating the speed a vehicle was travelling when the accident occurred are generally accepted.
“The legal position is that the insurer must prove that the insured acted recklessly.”
But here’s the thing — speeding on its own does not necessarily mean the insured was reckless.
“The insurer must put forward a convincing argument on which to conclude that the driver foresaw the possibility of an accident and deliberately courted the danger by taking measures which the driver knew were inadequate.
“Or that the driver recklessly reconciled themselves with the danger.
“It is unlikely that a driver will admit recklessness. Therefore, it may be determined by inferential reasoning based on the facts of the case.”
Bottom line — if your insurer rejects your claim on the grounds that you were speeding, and you feel that’s unfair, lodge a complaint with OSTI so the facts can be impartially considered.
Make sure you do this before returning a 'change of heart' online purchase
Thanks to the Electronic Communications and Transactions Act, if you buy something online you have the benefit of a seven-day cooling off period.
That means you get to change your mind about the product and send it back — at your cost, unless the company chooses to fund the return — for a refund.
That’s provided it’s in a resaleable condition.
So here’s a key tip, courtesy of Julie who learnt it the hard way: take photos of the item before you return it, as proof that it was in a resaleable condition when it left your hands.
Here’s what happened to Julie as described in a Facebook post: “I have just returned a pair of brand new, unworn shoes to a major online retail company. I tried them on, but they were a size too small, so I returned them.
“Now, to my shock and horror, I have received an e-mail to say that the shoes are dirty and have been worn.
“That is not how they left my home as I tried them on for about five minutes in my bedroom.
“I did not take photos of them before they left my home so how do I prove to them I did not wear them?
“I am concerned something happened between them leaving my home and arriving at the their destination.”
The sad truth is Julie has no means of proving what state those shoes were in when she handed them over. So always take photos of products before returning them, as evidence, should you need it.
CONTACT WENDY: E-mail: consumer@knowler.co.za; Twitter: @wendyknowler; Facebook: wendyknowlerconsumer
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