At present we do not have reported decisions by the Ombudsman on this topic. There is however enough information to warn that a car insurance claim resulting from an accident caused by texting and driving could be rejected!
We would like to place ourselves in the position of the Ombudsman and consider how such a scenario would be judged. The best starting point would be to ask what the law says about cellular phones and driving…
We would like to refer to the Road Traffic Act and the “Prohibition on use of communication devices while driving”
1) No person shall drive a vehicle on a public road –
(a) while holding a cellular or mobile telephone or any other communication device in one or both hands or with any other part of the body;
(b) while using or operating a cellular or mobile telephone or other communication device unless such a cellular or mobile telephone or other communication device is affixed to the vehicle or is part of the fixture in the vehicle and remains so affixed while being used or operated, or is specially adapted or designed to be affixed to the person of the driver as headgear, and is so used, to enable such driver to use or operate such telephone or communication device without holding it in the manner contemplated in paragraph (a), and remains so affixed while being used or operated.
It is important to keep in mind that “using or operating” is not restricted to speaking on the cellular phone but could include reading or typing a text message, reading e-mail, surfing the Web, looking at video on your smart phone, looking up a number. Anything you do that requires manipulating a keyboard can cause a distraction and could be interpreted as such under this prohibition!
We should also consider reported decisions in other matters. The Ombudsman has agreed with insurers in the past and rejected claims for accident damage caused by drunk driving and the driving of non-roadworthy vehicles. It is only reasonable that the vehicle owner should only be covered when operating his vehicle within the Rules of the Road.
How big is the threat of texting as a driver distraction? I would like to quote just a few points made on the Arrive Alive website:
- According to the National Roads and Motorists Association, text messaging drivers spent up to 400 percent more time with their eyes on the phone instead of on the road.
- Texting reduces reaction times of drivers.
- The reaction times of texting driver deteriorated by 35 per cent, much worse than those who drank alcohol at the legal limit, who were 12 per cent slower, or those who had taken cannabis, who were 21 per cent slower.
- When texting, you tend to wander across the lane.
- Research found that drivers who sent or read text messages were more prone to drift out of their lane, with steering control by texting drivers 91 per cent poorer than that of drivers devoting their full concentration to the road.
- The Transport Research Laboratory concluded that text messages took on average 63 seconds to compose while the phone owner is driving- compared with 22 seconds when sent from a desk.
Research has found that driving while texting is a bigger danger than impaired driving! We can expect that more insurers will refer in policy documentation the exclusion of damage caused by texting and driving!
If there is evidence that the driver caused the accident while texting behind the wheel, we believe that any car insurance claim emanating from such accidents would be justifiably rejected!