A driver estimated to have been travelling at 166kmh seconds before colliding with another vehicle in a 40kmh zone has lost his claim dispute with Suncorp.

The Australian Financial Complaints Authority (AFCA) upheld the decision by the insurer to refuse payment of the claim, ruling the man’s “recklessness” caused the crash and that it fell within his motor vehicle insurance policy’s exclusion relating to reckless acts.

A section of the policy contract reproduced in the AFCA ruling lists “driving at excessive speed” as an example of reckless acts, which is defined as “any intentional or reckless act by you, the driver of the car or by a person acting with your express or implied consent”.

AFCA says Suncorp has provided the necessary evidence such as forensic analysis to show why it could apply the exclusion.

The forensic vehicle examiner engaged by Suncorp says pre-crash data from the insured vehicle showed the man was travelling at 166kmh with the transmission in fifth gear at 2.5 seconds and about 100 metres prior to impact.

His speed was estimated at nearly 133kmh when his car crashed into the other vehicle at an intersection of two roads on May 26 2019 at about 12:30am.

“It is not enough to show that [the driver] acted negligently or carelessly,” AFCA says in its ruling. “The insurer must establish that, on the balance of probabilities, [the driver] recognised the danger of his actions and demonstrated a reckless indifference to the consequences."

AFCA says it is reasonable to accept that the driver was aware of the speed he was travelling as he is experienced.

“I am satisfied the available information establishes on the balance of probabilities that [the driver] was driving recklessly at the time of the collision,” AFCA said.

“[He] as an experienced driver would have been aware of the risk of travelling at such speed. He would be aware of the risk of being involved in a collision. Despite being aware of the risk, [he] recklessly courted that risk.”

The man and his wife, who are the co-insureds in the policy for the 2009 Holden Commodore Omega, disputed the speed at which the car was travelling when the collision happened. They say the roads were wet because of bad weather and that their son was in the car, making it highly improbable the man would drive at such excessive speed.

The man says he believed he was driving at 70kmh. The couple also say the speed limit signage may have changed to 40kmh after the collision.

However AFCA was not persuaded by their counter arguments.

“The fact that the son may have been in the vehicle does not mean [the driver] was not acting recklessly. It does not contradict the pre-crash data,” AFCA said.

“The available information indicates [the driver] failed to take reasonable precautions with driving at excessive speeds when the road was wet due to the weather while in proximity to other vehicles.”

AFCA says it did not have to rule on the insurer’s allegations that it has been misled since it has been determined the claim should be denied.

Click here for the ruling.