Fitting baby into car seat 'contributed to cause of collision', AFCA finds
Fitting baby into car seat ‘contributed to cause of collision’, AFCA finds
9 February 2022
A NSW parent whose car door was bent backwards while putting her baby in the backseat as a neighbouring vehicle moved forward out of their carpark has lost an effort to have her insurer waive a $750 policy excess.
The Australian Financial Complaints Authority (AFCA) ruled opening the car door “created a hazard” and Aioi Nissay Dowa Insurance was therefore not required to waive its excess.
“The complainant contributed to the cause of the collision and the claim is nonrecoverable,” the ombudsman said.
“It is possible both parties have breached the road rules or otherwise have some contribution to the cause of the collision. The relevant excess waiver test in the policy is if the complainant contributed to the cause of the collision.”
The mother said she was standing next to her vehicle putting her baby in the backseat when the other party moved out of their carpark and a tray on the back caught her door and bent it backwards.
The other vehicle was stationary when she opened the door, she said, and the other driver breached a NSW road rule stating “a driver driving in a shared zone must give way to any pedestrian in the zone”.
The other party said they did not see anyone near their car and they checked the front was clear and proceeded to drive forward. After moving about 1.5 metres, they heard a loud noise.
Aioi Nissay Dowa said the excess should not be waived as its policyholder contributed by breaching a road rule stating a person “must not cause a hazard to any person or vehicle by opening a door of a vehicle, leaving a door of a vehicle open, or getting off, or out of, a vehicle”.
The ombudsman said the available information was “not enough to show the complainant did not contribute to the collision at all” and the insurer’s decision was made “reasonably and fairly”.
The policy stated an excess must be paid if a claim was non-recoverable, as decided “fairly and reasonably” by the insurer, and the excess would only be waived for a recoverable claim – one where the policyholder did not contribute to the cause of the collision.
“I am not satisfied this decision is unfair or unreasonable,” the ombudsman said.
See the full ruling here.
