A claimant who sustained severe injuries in a fall on a cruise ship after drinking alcohol will not have his medical costs covered after failing to overturn his insurer’s claim denial. 

The complainant had been injured sometime around 11:15pm on June 3 2019, after tumbling down steps on the ship. Following the fall, the man was transferred to a hospital in Austria, where he endured a month-long stay. 

A doctor’s report revealed that the traveller had sustained injuries to his torso and head, including a moderate brain injury, skull fracture, and bruising to his right lung. 

The complainant lodged a claim with Zurich Australia to cover expenses relating to medical costs as well as travel and accommodation. 

But the insurer declined the claim, saying its travel policy excluded injuries that arose from “any conduct engaged in whilst under the influence or effect of alcohol”.

Zurich highlighted blood test results from 12:49 am on June 4, about an hour and a half after the fall, which revealed the complainant’s Blood Alcohol Concentrate (BAC) to be 0.198. 

A report from an insurer-engaged forensic medical specialist, referred to as Professor EO, says the man’s BAC levels indicated that he consumed a “large amount of alcohol” and that it was “highly likely” that his impairment from the intoxication contributed to the fall and significance of the injury.

The complainant challenged the conclusiveness of the report, noting that the professor had made “reservations” to change their findings if presented with new evidence.

The policyholder says the professor failed to consider several circumstances relating to the event, alleging that the section where he took the fall had been poorly lit and testimony from his wife who says he had not displayed drunken behaviour. He also noted a history of surgeries on his foot which impacted his ability to walk. 

The man says Zurich unreasonably delayed providing him with Professor EO’s report, affecting his ability to change the expert’s assessment. 

But the Australian Financial Complaints Authority (AFCA) was unconvinced, noting the complainant had failed to provide any photographs, medical reports or statements supporting his position. 

AFCA says the professor’s “reservation” on changing his opinion if presented with new evidence did not mean that his findings were “inconclusive or unreliable” and that there had been no suggestions that the blood test results were inaccurate.

“Professor EO has unequivocally concluded the complainant was under the influence of alcohol,” AFCA said.

“He also says that it is highly likely that alcohol impairment contributed to the fall and the severity of the injuries sustained.”

The ruling says it had been provided “no explanation” for why the complainant could not provide medical reports or any other evidence to support his arguments. 

It also notes that if the man had suffered from a pre-existing foot issue without declaring it, the insurer would have likely declined the claim.

“The policy contains a pre-existing medical condition exclusion, meaning even if the complainant’s foot issues were causative, the claim would still likely have been denied,” AFCA said.

“The insurer has established it is more likely than not the complainant was under the influence of alcohol and that was a causal factor in the fall.

“Accordingly, it is entitled to rely on the exclusion it has identified as forming the basis for denying the claim.”

Click here for the ruling.