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Reckless: jailed driverís mum loses crash claim

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A woman has lost a claim dispute with her insurer after her son drove her car while under the influence of drugs and collided with a motorcycle, seriously injuring both the people on the bike.

The son, who claimed he was being shot at by the motorcyclist, was charged by police with 22 offences and jailed for 30 months after pleading guilty to six counts. He was disqualified from driving for four years. The car was a total loss.

His mother held a comprehensive insurance policy with Insurance Manufacturers of Australia (IMA) – the operating company for the NRMA Insurance/RACV Insurance joint venture owned 70% by IAG and 30% by RACV – which declined her claim on the basis the incident was not an accident, the vehicle was being used for an unlawful purpose and the driver was engaged in a wilful and reckless act.

The son, who tested positive for methamphetamines and other drugs, said he collided with the motorbike while hiding behind the steering wheel to avoid gunshots being fired at him by the people on the motorbike.

A firearm and drugs were found beneath the seat of the bike, though police said it was impossible for the gun to have been retrieved, used and replaced with two riders on the seat.

There was no evidence the firearm had been fired, or of gunshot damage to the insured car.

“I am not satisfied (the son’s) suggestion of being shot at assists in explaining the collision or shows that it was an accident,” the Australian Financial Complaints Authority (AFCA) ombudsman said.

“He was indifferent to the outcome of his actions – whether that be hitting another person or vehicle, or damaging the one he was driving at the time – in circumstances where there was an obvious risk of injury and damage.”

A policy exclusion for wilful or reckless acts would apply, “and the insurer would be entitled to deny liability on that basis even if a valid claim had been established,” the ruling says.

Both the motorcycle driver and the son were known to police, and drugs on the motorbike were the same as those consumed by the son earlier that day.

“There is a likelihood there was at least some connection,” AFCA says. “I am satisfied that in turn suggests the encounter/collision was not accidental.”

The son pleaded guilty to two counts of driving in a dangerous manner causing serious injury, failing to render assistance after an accident, driving while exceeding the prescribed concentration of drugs, recklessly causing injury and intent to damage/destroy.

Police said upon being told the motorcyclist had serious injuries, the son replied: ‘Good. I wanted them to die.’ This was later denied by the mother and son.

An independent witness told police he saw a white car driving erratically at significant speed leading up to the impact with the back of the motorbike. He provided dashcam footage showing the son’s car accelerating from a parked position when the motorbike passed and swerving before colliding with it.

The footage showed no evidence of gunshots being fired.

“These statements and the dashcam evidence do not definitively establish an intention by the complainant to cause the collision,” AFCA says. “However, I consider they do suggest that was a real possibility, and that there was, at the very least, recklessness.”

Although the investigation by IMA after the April 2016 incident was lengthy, AFCA says the insurer had “not acted unreasonably” and did not agree to compensate the vehicle’s owner.

See the full ruling here.