A freight transport company has lost a claim dispute over the accidental death of its employee – a truck driver ejected from a prime mover after it crashed into a large tree and found to have multiple drugs and an illegal level of alcohol in his system.

The business held a corporate travel insurance policy with Chubb, providing cover of $250,000 for accidental death during a journey. The insurer denied the claim because of an exclusion for loss caused by criminal acts.

A forensic pathologist found the presence of methylamphetamine, codeine, morphine, cannabis, a blood alcohol level of 0.07% and indications of heroin use.

Chubb paid a benefit for a co-driver, who also died in the same accident, on a “good faith non-precedent basis” even though both deaths were caused by the driver’s crime and it was entitled to refuse.

The man and his co-driver left the WA freight yard late on a night in June 2019 in the prime mover, towing two trailers. Just after midnight, after about an hour of driving, the prime mover exited a slight bend in a straight line and crossed to the incorrect side of the road.

It travelled down an embankment and collided with a large tree. The two men were ejected and died at the scene.

An investigation by WA police found no faults or defects in the truck or trailers and no evidence of any obvious braking at the crash scene – consistent with the driver having fallen asleep, or suffering a medical episode that prevented him from controlling the truck and braking.

The freight business told the Australian Financial Complaints Authority (AFCA) that Chubb should accept its claim because it did not know about the employee’s drug use.

It argued the business had not committed any criminal act, and as it was the policyholder the cover should therefore apply.

“That is incorrect. The exclusion applies to criminal acts committed by the policyholder or an insured person,” AFCA said.

While there was no dispute that the employee’s death was accidental or that it happened while on a journey, AFCA said he died because he drove while affected by drugs - a criminal act and therefore excluded.

“According to the policy terms, it does not matter whether the employer is aware of the criminal act,” AFCA said. “The exclusion applies.”

Under the Road Traffic Act, a person in WA commits a criminal offence if they drive a motor vehicle with a blood alcohol content of or above 0.05%, are impaired by drugs, or if methylamphetamine is present in their blood. AFCA noted the driver’s partner said she was aware he had used methylamphetamine and been drinking alcohol and said Chubb had established the loss – the collision - arose out of a criminal act.

“By driving with these drugs in his blood, (the driver) was committing a criminal act,” AFCA said, noting also that a Coroner’s report said the way the collision occurred was consistent with the driver being affected by drugs.

Other than drug use, no factors were identified as potentially having contributed to the collision.

“He had only been driving for about an hour. The Coroner’s report indicates it is unlikely that he would have lost consciousness due to fatigue if he was not affected by drugs.

“I am satisfied, on the balance of probabilities, that the criminal act caused the collision. Therefore, the insurer is entitled to apply the exclusion to deny the claim,” AFCA’s ombudsman said.

See the full ruling here.