A drunk driver who crashed into a house and asked for “special consideration” to have her unsuccessful claim for third-party property damage overturned, citing her financial hardship, has lost her dispute against the insurer.

The woman, who held a comprehensive motor vehicle policy with Auto & General, told the Australian Financial Complaints Authority (AFCA) she made a bad decision to drive, saying her cognitive function was impaired after drinking a bottle of wine, whisky and some shots.

She says the incident, which happened on October 25 at around 9.25pm last year, was a one-off and that she did not intend to hurt anyone. She initially told police who attended the scene she started drinking in the afternoon and was unsure of her last drink.

In the police report the woman’s appearance was described as very incoherent, her eyes were red and she exhibited unsteady movements.

AFCA dismissed her case, backing the insurer’s decision to deny liability by relying on the exclusions in the policy exempting cover when an insured is behind the wheel while under the influence of alcohol and driving with a blood alcohol content over the prescribed legal limit.

AFCA says section 54 of the Insurance Contracts Act does not assist the complainant.

The evidence submitted showed the actions of the woman, who drank so much that her blood alcohol content test returned a 0.195% reading - the legal limit in Queensland is 0.05% - could reasonably be regarded as capable of causing or contributing to the accident, AFCA says.

Auto & General has produced the proof needed to show that the woman was driving under the influence of alcohol and had breached the legal limit for alcohol when she crashed her car into the house.

The insurer provided a report from its forensic consultant, who concluded it was highly likely the woman’s impairment by alcohol contributed to the collision. The expert also cited studies that showed there was a significant risk of collision even for drivers who marginally breached the legal alcohol limit. Additionally he says the way the woman’s car had crashed was typical of collisions caused by alcohol impairment.

“In this complaint the question is whether the insurer can show the act of driving under the influence or with a [blood alcohol content] over the relevant legal limit could reasonably be regarded as being capable of causing or contributing to the loss,” AFCA said.

“I am satisfied the insurer is entitled to deny the complainant’s claim, on the basis that complainant had a blood alcohol content exceeding the legal limit at the time of the accident and was significantly impaired by the levels of alcohol in her system.”

In two other cases, previously reported by insuranceNEWS.com.au, involving Hollard and NM Insurance respectively, the claimants won despite breaching the legal limit for blood alcohol content. AFCA ruled that the insurers had failed to prove the claimants were under the influence and therefore could not rely on the policy exclusion denying liability for alcohol-related claims.

AFCA empathises with the woman in this dispute but says the circumstances of the accident do not justify going outside the terms of the policy.

“The complainant was aware of the terms of the policy and of the relevant community standards expected when driving,” AFCA said. “The complainant made a mistake, but her conduct cannot be excused, nor should the policy terms be ignored.”

Click here for the ruling.