37   Evidence of breath test, breath analysis, oral fluid test, oral fluid analysis or blood or urine analysis and related facts not admissible in insurance cases to prove intoxication or drug use

(cf Traffic Act, ss 4E (13), 4G (12) and (13) and 5AB (5) and (6))

(1)  For the purposes of any contract of insurance, any of the following facts are not admissible as evidence of the fact that a person was at any time under the influence of or in any way affected by intoxicating liquor or incapable of driving or of exercising effective control over a motor vehicle:

(a)  the fact that a person has undergone a breath test or submitted to a breath analysis under Division 3,

(b)  the result of a breath test or breath analysis,

(b1)  the fact that a person has undergone an oral fluid test or provided a sample for oral fluid analysis under Division 3A,

(b2)  the result of an oral fluid test or oral fluid analysis,

(c)  the fact that a person has been convicted of an offence under section 9, 11B (1) or (3), 13 (2), 15 (4), 16, 18B (2), 18D (2), 18E (9) or 18G (1).

(2)  For the purposes of any contract of insurance, the results of any analysis of blood or urine under Division 3A, 4, 4A or 5 are not admissible as evidence of the fact that a person was at any time under the influence of or in any way affected by intoxicating liquor or other drug or incapable of driving or of exercising effective control over a vehicle or horse.

(3)  Nothing in subsection (1) or (2) precludes the admission of any other evidence to show a fact referred in the subsection.

(4)  The provisions of this section have effect despite anything contained in any contract of insurance.

(5)  Any covenant, term, condition or provision in any contract of insurance is void:

(a)  to the extent that the operation of this section is excluded, limited, modified or restricted, or

(b)  to the extent that it purports to exclude or limit the liability of the insurer in the event of any person being convicted of an offence under section 9, 11B (1) or (3) or Division 3 or 3A.

(6)  However, nothing in subsection (5) precludes the inclusion in a contract of insurance of any other covenant, term, condition or provision under which the liability of the insurer is excluded or limited.