Page 2732 - Week 13 - Tuesday, 21 November 1989
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MR STEFANIAK (4.04): Mr Speaker, Mr Duby certainly was most eloquent. Unfortunately, he was, I think, wrong in one respect. In New South Wales legislation, as I indicated, the provisions of the subsection have effect notwithstanding anything in any contract of insurance or covenant, term, condition or provision therein, to the extent that the operation of that subsection is excluded, limited, modified or restricted, whereas the proposal in clause 9 of the Bill - subsection (5) of proposed new section 41A - states:
Nothing in this section shall be taken as precluding the inclusion in an insurance contract of a covenant, term, condition or provision that excludes, limits, modifies or restricts the liability of the insurer otherwise than by a covenant, term, condition or provision of a kind referred to in subsection (2) or (3).
So it does extend it further than New South Wales, and I draw that to Mr Duby's attention. That is quite different.
I conclude simply by quoting a couple of points from, I think, one of the papers given to us by the NRMA during the consultation period. It stated:
In the past, we have used the results of both breath analysis and blood analysis in the ACT to support our case that a person has been under the influence of alcohol at the time of an accident. We do not have written into our policies that they will not operate if the person has a blood alcohol content which is above the legal limit. In other words, we do not refuse claims merely because the individual is above .08. We act far more responsibly.
In all cases where we believe that alcohol may have been a contributing factor in a car accident, we interview in detail, the driver of the insured's car and, if they are different people, we also interview our insured. This is to determine whether the driver was under the influence at the time of the accident. We also take statutory declarations from the insured. This can generally yield enough information to assess whether the person was under the influence. However, the blood analysis reading is used to confirm our belief. This lends objective, factual support to a subjective belief. In the absence of a blood analysis reading we must rely upon the policyholder's word about how much alcohol was consumed prior to driving, the recency of the consumption etc., and whether he or she believed they were affected by alcohol when they got behind the wheel. If we were unable to use analysis results, irresponsible drivers would know that all
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