The incident occurred around 11:15pm on June 3, 2019, when the complainant tumbled down the ship's steps. He was subsequently taken to a hospital in Austria where he stayed for a month.
The complainant's medical report confirmed injuries to his torso and head, including a moderate brain injury, skull fracture, and bruised right lung.
Seeking coverage for medical costs, as well as travel and accommodation, the complainant filed a claim with Zurich Australia.
However, the insurer rejected the claim, citing their travel policy's exclusion of injuries caused by alcohol consumption.
Zurich pointed out blood test results taken at 12:49 am on June 4, approximately one and a half hours after the fall, which showed the complainant's Blood Alcohol Concentrate (BAC) to be 0.198.
According to a report from Professor EO, a forensic medical specialist engaged by the insurer, the complainant's BAC levels indicated a substantial consumption of alcohol, suggesting that his impairment contributed significantly to the fall and the severity of the injury.
The complainant disputed the report's conclusions, highlighting the professor's "reservations" about altering his findings if presented with new evidence.
He argued that the professor failed to consider the circumstances surrounding the incident, such as the poor lighting in the section where the fall occurred, as well as his wife's testimony claiming he had not exhibited signs of intoxication.
Additionally, the complainant noted a history of foot surgeries that impacted his ability to walk.
He further alleged that Zurich had unreasonably delayed providing him with Professor EO's report, which hindered his ability to challenge the expert's assessment.
The Australian Financial Complaints Authority (AFCA), however, remained unconvinced, stating that the complainant had not presented any supporting evidence, such as photographs, medical reports, or statements.
AFCA emphasized that the professor's "reservations" did not render his findings inconclusive or unreliable, and no evidence had suggested inaccuracies in the blood test results.
"Professor EO has unequivocally concluded that the complainant was under the influence of alcohol," AFCA asserted. "He also states that it is highly likely that alcohol impairment contributed to the fall and the severity of the injuries sustained."
According to the ruling, the complainant provided "no explanation" for his failure to provide medical reports or any other evidence to support his claims.
Furthermore, AFCA observed that had the complainant failed to disclose a pre-existing foot issue, the insurer would likely have denied the claim on those grounds.
"The policy contains a pre-existing medical condition exclusion, so even if the complainant's foot issues were causal, the claim would likely have been denied," AFCA explained.
"The insurer has established that, more likely than not, the complainant was under the influence of alcohol, which was a contributing factor to the fall. Consequently, the insurer is justified in relying on the exclusion as the basis for denying the claim."
Published: Friday 18th August, 2023
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