South Australian Consolidated Acts

MOTOR VEHICLES ACT 1959 - SECT 124A

124A—Recovery by insurer

        (1)         Where an insured person incurs a liability against which he or she is insured under this Part and the insured person has contravened or failed to comply with a term of the policy of insurance—

            (aa)         by driving a motor vehicle, or doing or omitting to do anything in relation to a motor vehicle, with the intention of causing the death of, or bodily injury to, a person or damage to another's property, or with reckless indifference as to whether such death, bodily injury or damage results; or

            (a)         by driving a motor vehicle while so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle; or

            (b)         by driving a motor vehicle while there is present in his or her blood a concentration of .1 grams or more of alcohol in 100 millilitres of blood,

the insurer may, by action in a court of competent jurisdiction, recover from the insured person any money paid or costs incurred by the insurer in respect of that liability.

        (2)         Where an insured person incurs a liability against which he or she is insured under this Part and the insured person has, to the prejudice of the insurer—

            (aa)         contravened or failed to comply with a term of the policy of insurance by committing an offence against section 43 of the Road Traffic Act 1961 ; or

            (a)         contravened or failed to comply with any other term of the policy of insurance other than one referred to in subsection (1); or

            (b)         contravened or failed to comply with—

                  (i)         a requirement of section 124; or

                  (ii)         a provision of section 126,

the insurer may, by action in a court of competent jurisdiction, recover from the insured person so much of the money paid or costs incurred by the insurer in respect of that liability as the court thinks just and reasonable in the circumstances.

        (2a)         A finding of a court in proceedings for an offence as to—

            (a)         the insured person's incapacity to exercise effective control of the vehicle at the time of the motor accident owing to the influence of intoxicating liquor or a drug; or

            (b)         the concentration of alcohol present in 100 millilitres of the insured person's blood at the time of the motor accident; or

            (c)         whether the insured person is guilty of an offence against section 43 of the Road Traffic Act 1961 ,

will be treated as determinative of the issue in an action by the insurer under this section.

        (2b)         For the purposes of this section, a person will be taken to have committed an offence against section 43 of the Road Traffic Act 1961 if, and only if, the person has been found guilty of the offence.

        (3)         Where an insured person incurs, as a participant in a road race, a liability against which he or she is insured under this Part, the insurer may, by action in a court of competent jurisdiction, recover from the organiser of the road race the amount of the liability and the reasonable costs incurred by the insurer in respect of that liability.

        (4)         A court before which an action is brought for recovery from a person of a sum paid by an insurer to satisfy a liability incurred by an insured person must, if the court is to determine the amount that it is just and reasonable in the circumstances for the insurer to recover from the person, take into account—

            (a)         the extent to which the person contributed to or is otherwise responsible for the liability incurred; and

            (b)         any other matter that the court considers relevant.