Monday, 26 March 2012

Unintended Consequences

Insurance companies are not philanthropic by nature. Whenever a claim is made against a policy, the company will evaluate the claim against the policy wording. Most people buy insurance based on costs or perceived cover not on the detail of the policy. The policy documentation is usually not provided until the policy has actually been purchased.

Insurance is a requirement by BW for each and every boat. However, there are changes made in policy details from time-to-time which rule out certain criteria. For instance, our boat insurance only covers us for a river passage made in one journey. (My understanding of this is that as a consequence, we cannot moor overnight on a river) Recently the wording of some insurance polices has potentially excluded anyone driving "under the influence" of alcohol or drugs. Few people would disagree that anyone who is found to be over the drink-drive limit (and driving) should not be able to make a claim against their insurer for damage to their vehicle or themselves.

My concern is that people who have taken prescription drugs could now be caught out. Could someone be taking medication which could then invalidate their insurance. Under the "influence of drugs" is such a catch-all statement! The fact that a doctor has issued a prescription could possibly be sufficient evidence of drug use. Does driving mean only the person at the tiller or would it apply to anyone on the end of a mooring rope for instance who may be taking prescription drugs?

The Road Traffic Act states insurers still have to pay out for third party claims, even if an insurer tried to exclude themselves from providing cover on the grounds of that the driver was under the influence of drink or drugs. This is to deter such actions by insurers. The road traffic act however could also apply to boats but only in certain cases.
It is an offence for a person to be in charge of a mechanically propelled vehicle on a road or other public place while unfit through drink or drugs. Road Traffic Act 1998 s.5(1)(6) You could also get a £5000 fine and 10 Penalty Points on your driving licence. As well as a 36 month driving ban! I remember a few years ago a pedal cyclist had points added to their driving licence for speeding.

Lets suppose you were on holiday and after a days boating you moor up and settle down for a meal and the odd glass of beer or wine. Something that we as boaters do all the time. Could we be invalidating our insurance. We are after all technically still "in charge" of the boat in a public place. (It is currently illegal to be drunk in charge of any vessel on British Waterways so yes prosecution would be possible) We would never dream of drinking of an evening and sleeping in our car. Yet this is what we do of an evening when out in our boat. Many of us also take various prescription medication - as age catches up with us.

The British Insurance Brokers' Association, says members have also noticed the changes and are worried about their possible implications: "These exclusions have been creeping into some insurers' policy wordings, to deter drink-driving. It could have some unintended consequences. Could someone be taking medication which could then invalidate their insurance?"

The Association of Chief Police Officers said that its interpretation of "being under the influence" means being over the legal limit. Whilst there are limits for alcohol - the rules on impairment by the use of drugs is different. It is down to the impairment test administered and the subjective view of a Police officer.

So before you call out the local police to that rowdy set of boaters moored next door to you - Be aware of the law of Unintended Consequences and how it might just apply to you! When there is an incident reported the police, they tend to breathalyse everyone. If your aboard your boat you're technically in charge! Unless you have a designated driver who is stone cold sober and you can't claim its the dog!

There is no legal definition for the term "in charge" so each case will depend on its exact circumstances and facts. Generally, a Defendant is "in charge" if he was the owner/in possession of the vehicle or had recently driven it. He is not in charge if it is being driven by another person or is "a great distance" from the vehicle.

Matters are more complicated where a person is sitting in the vehicle or "otherwise involved with it". In charge can include attempting to gain entry to the vehicle and failing, having keys to the vehicle, having intention to take control of the vehicle or even "being near the vehicle".


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