- Claim rejected after vehicle was hijacked and later burnt, insurer cited recklessness.
- Driver believed he was safe near a police station and close to home.
- Ombud found no intentional risk-taking and ruled insurer must honour the claim.
In the aftermath of a violent hijacking, a traumatised man not only lost his car but also had to face the cold rejection of his insurance claim, adding insult to injury during an already devastating time.
What began as a routine drive home ended in terror, with his vehicle hijacked at gunpoint and later found in a burnt state. The insurer’s response was to accuse the driver of recklessness and deny him compensation.
But in a turn of events that affirms the importance of fairness and due process, the National Financial Ombud Scheme stepped in and ruled that the man had not acted recklessly but had instead made a human error under circumstances that did not justify denying his claim.
The night that changed everything
It was the evening of 22 May 2024 when the complainant, just 700 metres from home, pulled over to relieve himself. Believing the area to be safe, familiar territory with a police station nearby, he left the engine running with the keys in the ignition. As he returned and opened the car door, he was ambushed at gunpoint by two men. A struggle broke out, but the hijackers eventually overpowered him and sped off. The vehicle was later recovered, burnt beyond repair.
When he submitted his claim, the insurer rejected it. They cited policy clauses that require drivers to “take all reasonable precautions” and accused him of breaching his duty of care by stopping in a dark area and leaving the engine running. According to the insurer, he should have stopped earlier at a plaza or fuel station and knowingly exposed himself to the risk of hijacking, which they argued is common and foreseeable in South Africa.
Negligence is not recklessness
The case turned on the legal distinction between negligence and recklessness. Relying on the precedent set in Santam v CC Designing BK (1998), the ombud reminded the insurer that it bore the burden of proof. For conduct to be reckless, the insured must have consciously foreseen the danger and still proceeded regardless.
But the complainant had said he genuinely believed the area was safe, due to the nearby police station and his familiarity with the road. Crucially, the hijacking occurred after he returned to the vehicle. He was not away when the car was taken, which suggests that even if the engine had been off and the doors locked, the outcome may have been the same.
The ombud concluded that while the driver may have been negligent, his actions did not amount to recklessness. There was no evidence that he knowingly exposed himself to danger or acted with disregard for possible loss.
Fairness restored after a violent loss
After reviewing the ombud’s findings, the insurer conceded and paid the claim. For the complainant, the decision offered some measure of closure, not just financially but emotionally.
Conviction.co.za
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