The Australian Financial Complaints Authority (AFCA) has made clear insurers must prove a claimant is under the influence if they are to rely on exclusions for drugs and alcohol contained in standard travel insurance policies.

In one dispute lodged with AFCA, the mediator upheld the decision by Zurich to reject a claim for overseas medical expenses as supporting hospital papers showed the claimant was intoxicated.

The claimant was on an escalator when he lost his balance and fell at about 4.30am on June 11 last year. He had been out celebrating the upcoming wedding of a friend. It was not mentioned in the AFCA ruling which country the claimant had travelled to.

The claimant was taken to a hospital for treatment where he also took a blood alcohol content (BAC) test at about 5am, 30 minutes after his fall. The test came back with a 0.281% reading and “alcohol breath” was included in his medical observation record.

Hospital records provided to AFCA showed a psychiatric assessment concluded the claimant’s judgement was “impaired by intoxication” and the eventual diagnosis included “alcohol intoxication”.

Zurich on its part had engaged an expert medical consultant to review the hospital records, who concluded the claimant was under the influence of alcohol when he fell and that the “impairment of alcohol” contributed to both the fall and severity of the injury.

“The complainant does not dispute he was drinking on the evening. The BAC level recorded by the hospital and its comments and diagnosis are consistent with the fact that alcohol was a factor in his injury,” AFCA said.

“Based on the exchanged information, I am satisfied the complainant had consumed such a quantity of intoxicating liquor that it disturbed the balance of his mind for the quiet, calm, intelligent exercise of his faculties.

“I am also satisfied his accident, at least indirectly, arose from conduct engaged in whilst under the influence or effect of alcohol or drugs.”

In another case, AFCA ruled Allianz Worldwide Partners (AWP) is liable for the medical expenses of a claimant who received treatment for malaise and fatigue over six days at a hospital in Cambodia.

AWP says the hospitalisation was caused by the claimant’s use of intoxicating substances but the claimant disputes it, saying he only had two drinks on the evening of February 15 2018, when he went out with friends to commemorate his partner’s recent passing.

He says he had no recollection of what happened, after he woke up days later following his hospitalisation, and believed he may have been drugged and robbed.

AFCA was not convinced the evidence produced by AWP proved that the claimant was intoxicated at the time of the incident. The insurer had submitted a witness statement from the hotel where the claimant was staying that said he seemed drunk. However AFCA says it is not clear if the witness could tell the difference between someone who was drunk, or robbed and drugged.

While the claimant has a medical history of drug and alcohol abuse, AFCA says this does not establish the complainant was under the influence at the time of the event. Nor is it sufficient to support an inference given the other factors.

Medical tests taken by the claimant showed no traces of alcohol or drugs in his blood and a report from the hospital said he had an altered mental status secondary to concussion following a drugged and assaulted robbery.

AFCA ruled AWP must pay for the medical bill since it failed to provide sufficient evidence to show the complainant was under the influence of intoxicating liquor or drugs.

Click here for the AWP ruling and here for the Zurich determination.