A 35-year-old man has won a claim dispute after colliding with a median strip while driving his $42,000 Mercedes A45 AMG home after drinking free-poured scotch whisky on ice with friends.

A European vehicle specialist assessed the damage at over $15,000.

Police attended the scene at 10.50pm shortly after the July 2020 accident, finding two small bottles of gamma-butyrolactone (GBL) in the driver’s possession, which he denied using.

The officers noted the driver appeared “erratic” and to be under the influence of something, was evasive and moving around a lot, had bloodshot eyes, was talking fast and unstable on his feet.

A preliminary breath analysis test for alcohol returned a reading of 0.07%. A further breath test carried out at the police station at 12.02am returned a reading of 0.045% - below the legal limit of 0.05% - and he was released from custody. No drug test was carried out.

The driver lodged a claim for damage to his vehicle from the single vehicle collision under a Suncorp comprehensive motor vehicle policy.

Suncorp declined the claim after its appointed pharmacologist concluded alcohol was the main contributing factor to the accident and noted the possible effect of other drugs or medicine.

The signs and symptoms displayed by the driver as observed by the police suggested a higher blood alcohol reading than the breath test produced and so it was possible such signs were the result of a combination of alcohol combined with the effects of Endep and/or Ritalin “abuse”, and/or GBL. Some visual functions, emergency skills and perceptions were likely to have been impaired, the pharmacist said, listing reaction times to lane keeping and visual scanning.

“Based on the signs and symptoms allegedly displayed by the driver there would have been impairment of his driving ability.”

The Mercedes owner said on the evening of the accident he consumed two drinks of Johnny Walker Black on ice while visiting a friend’s house, the first at around 8.30pm and the second an hour later. He advised the scotch whisky was not measured but free-poured, and he thought it amounted to around one shot.

The Australian Financial Complaints Authority (AFCA) ruled there was insufficient proof the driver had his judgment affected by any alcohol, drug or medication, or had more than the legal driving limit for alcohol or drugs, and therefore Suncorp had not established application of its exclusion and must accept the claim.

"The insurer is to retrieve the vehicle from storage and arrange for the vehicle to be repaired,” AFCA ruled.

The arguments of Suncorp’s pharmacologist in relation to the possible effects of drugs were “speculative and largely irrelevant,” AFCA said, and based for the most part on the behaviour of the complainant described by the police after the accident.

“The reading the insurer relies on is preliminary and indicative only,” AFCA said. "The panel is not satisfied back calculation can be relied on when there is no definitive information to show what time the complainant had his last drink before driving.” Any possible effect from drugs was not considered as the driver was not drug tested.

The man engaged his own pharmacologist/toxicologist who said it was speculative to suggest he ingested drugs, and Suncorp could not rely on the preliminary blood alcohol reading to decline the claim.

AFCA said this opinion raised “enough doubt as to the methodology used by (Suncorp’s pharmacist) in submitting the effect the level of alcohol may or may not have had on the complainant at the time of the collision”.

See the full ruling here.