How careless is gross carelessness?

Jiang was returning from overseas, travelling with his elderly, anxious parents. After a long day of travel, Jiang left his parents at the departure gate to go to the bathroom. While washing his hands, Jiang put a travel pouch containing his phone, headphones, sunglasses, and two cameras beside him at the wash basin. When the boarding call for his flight sounded, Jiang’s thoughts went immediately to his parents who were keen to get on the flight without delay. Jiang ran from the bathroom, leaving the pouch behind.

After about five minutes, Jiang noticed the pouch was missing and returned to the bathroom, but the pouch was gone. The lost and found counter was unattended so Jiang asked ground crew what he should do and was told to get on the flight and call the airport once he arrived back in New Zealand.

Jiang followed the ground crew’s advice but, when he called the airport, he was advised that the pouch had not been handed in. Jiang lodged an insurance claim for $5,700.

The travel insurer declined the claim, referring to an exclusion in the policy for items left unattended in a public place. Jiang disagreed with the insurer’s decision and complained to FSCL.

 

Dispute

The insurer explained that it was a condition of the policy that Jiang not leave items unattended. Given the high value of the items, the insurer considered Jiang had been grossly careless. The insurer acknowledged that it routinely receives and accepts claims for low value items that are accidentally left behind. However, given the value of the items in the pouch, the insurer considered that the reasonable person would not have taken the pouch off, and if they had done so, would have remembered to pick it up again. The insurer considered that the failure to pick up the pouch was grossly careless on Jiang’s behalf and he was not entitled to compensation for his loss.

Jiang did not consider his claim was excluded by the policy. Jiang accepted that he had been careless, but did not consider his actions amounted to gross carelessness. Jiang said that it was a momentary lapse of attention, he did not intend leaving the pouch behind, and considered this was exactly the scenario that insurance was intended to cover.

 

Review

The central issue to this complaint was whether Jiang’s actions amounted to gross carelessness. For the purposes of analysis, we divided Jiang’s actions into two parts:

  • the decision to remove the pouch from his neck and place it beside him at the basin
  • the failure to pick the pouch back up again.

Jiang explained that he removed the pouch from his body to prevent it from banging against the basin while he was washing his hands. This was a conscious decision and by doing so, Jiang introduced an element of risk. However, the risk of loss at this point was so slim, that we had difficulty concluding that Jiang could even be considered careless at this point.

Then, human nature intervened. Jiang heard his boarding call and his attention was immediately diverted to his elderly parents. Jiang momentarily forgot about the pouch. We needed to decide whether this action was merely careless, or whether it reached the bar of gross carelessness.

It was our view that value is relevant when determining the care a person can reasonably be expected to take, but it is not the only factor. We noted that the items were stolen from a bathroom in a busy airport, and although the only people with access to that bathroom must have a boarding pass and a passport, it was our view that the location carried with it some risk. However, the action was inadvertent, a momentary lapse on the part of a tired, stressed traveller. We also considered it relevant that the items were left for a matter of minutes only. As soon as Jiang realised the pouch was missing, he immediately returned to the bathroom.

It was our view that Jiang had not been grossly careless, and that the insurer was obliged to accept the claim.

 

Resolution

Both Jiang and the insurer accepted our view and the complaint was resolved on this basis.

 

Insights for consumers

Consumers are obliged to take reasonable care of their property. However, what will be considered reasonable is decided on a case by case basis. Generally, we will ask ourselves what we think a reasonable person would have done in that situation. Every circumstance is unique, but some of the factors we will take into consideration are:

  • the situation in which the loss occurred
  • whether there were lots of people around, or a remote location
  • whether the location is known to be risky
  • the time of day the loss occurred
  • whether this is a risk the insured routinely runs, or whether it was an inadvertent, momentary lapse of attention.

 

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