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What is ‘acceptable behaviour’
to the Ombud?

I emphasise that I write this in my personal capacity not representing any body, company or organisation. We have had three claims recently where the Ombudsman has requested that payment be made and we have acceded to paying the claims.

All three are relevant in the context of Commercial Vehicle underwriting today. We have also noted some protests from our colleagues in the industry around the complaints initiated. These responses to some of the rulings they have received from the Ombudsman have clearly been difficult to digest for those concerned.

We have complete buy-in to equity and fairness (EF). In other words, the Ombudsman is doing an excellent job and we welcome working with any organisation such as this.

Our three claims deal with the following circumstances:
1. No brakes - and I don't mean linings below par! 
2. No PrDP.
3. Lack of roadworthiness - the major aspect of the claim.

Let's look at each of these three cases:

No brakes
This claim was to do with a rig with no brake linings on the brake drums. Technically, the Ombudsman agreed that the vehicle was unroadworthy. He stated, however, that the load shifting was the cause of the accident and therefore in terms of EF, we should pay. Happy! The point of discussion is: What should the Ombudsman's stance be on the roadworthiness?

No PrDP
We had a claim involving a driver without a PrDP. Again we paid after request from the Ombudsman.

Lack of roadworthiness
This was the more difficult one where the policyholder/owner of the vehicle was driving and was intoxicated. This vehicle was not roadworthy. 

In terms of these claims, my concern and opinion is that I would want to see a far stronger behaviour analysis and commentary from the Ombudsman. The first claim happened in Northern KwaZulu Natal, not renowned for flat highways and easy conditions. It is not acceptable that there is no adverse comment on vehicles that are not roadworthy.

In terms of the second claim, yes it might not have been relevant that the driver at the time of the accident didn't have a PrDP but, the very least that the Ombudsman must endorse is some benchmark of standards. I have often stated my stance on PrDPs so will not repeat it here. Without upholding the legislated standards of the industry, the knowledge that those who do not comply will "get away with it" will also result in no reciprocal barrier to entry for those that comply! If the Ombudsman handles each case with these points in mind, this completes the EF circle because it lays down what is acceptable behaviour to the transport industry.

Finally, I would have to comment that if any client or transport operator is left with a repudiation and has not had much success in getting a claim settled, go to the Ombudsman first. They are sure to help you.
 

What planet is the
Ombudsman living on?

Editor's Comment: I do not usually add comment to Chris Barry's guest column but in this case, I have to express my total shock, horror and disgust at the rulings of the Ombudsman. In the opinion of FleetWatch - and I stress I write this independently as Editor of FleetWatch without any collaboration with or from Chris Barry - not one of those claims should have been ruled by the Ombudsman in favour of the complainant because in each case, blatant transgressions of the law of the land were obvious.

An unroadworthy vehicle driven by an intoxicated driver - and the driver still gets paid out on his insurance claim!!! What planet is the Ombudsman living on? Certainly not ours because he obviously hasn't read that alcohol is shown to be a factor in 58% of driver deaths and 61% of all pedestrian deaths on our roads. And how many deaths are we talking about? Well. It is estimated that somewhere between 18 000 and 25 000 people will lose their lives on our roads this year. Last year's figure exceeded 15 000. Drive Alive estimates that a person is killed every 48 minutes on our roads, 104 people sustain serious injuries per day and 230 people per day less serious injuries.

Although Chris Barry does not give details of why the Ombudsman chose to rule in favour of this drunken driver behind the wheel of an unroadworthy vehicle, whatever his reason, it does not hold water against the fact that the driver and his rig were operating illegally.

As for the Ombudsman ruling in favour of the guy whose load shifted on a vehicle which had no brake linings on the brake drums, he obviously hasn't read a recent estimate which showed that 60% of all vehicles on our roads are unroadworthy and unsafe and that this situation contributes directly to the disastrous accident rate on our roads. Loads shift all the time and are often the cause of overloading fines being issued due to axles being overloaded because of the load shift. But having no brakes is another story. That vehicle is unroadworthy and is operating illegally on our roads. In this case, the load probably shifted because the driver couldn't slow down on a corner or something due to having no brakes. He does not deserve any payment whatsoever.

Yes, as Barry states, there is contention around the PrDP but if a driver is driving a vehicle which is defined under the PrDP legislation, he must possess one otherwise he is driving illegally. There is no debate around it. How can the Ombudsman rule in his favour?

These three rulings of the Ombudsman are wrong - totally wrong! Good grief. It makes a mockery of everything we are trying to achieve in terms of safe and legal transport operations. It also makes a mockery of any efforts of the insurance industry to impact positively on road safety issues. Get with the programme Mr Ombudsman. You are way out of line on these cases. You are also way out of sync with all members of the road safety fraternity who are trying so hard to clean up the mess on our roads. They, like I am, will be horrified at your decisions on these cases - and I will make sure they get to know of them. I will go so far as to say that if these three cases indicate your future stance on claims involving unroadworthy vehicles, drunken drivers and other such deviations from the law, then you are the wrong man for the job.