A Holden driver who failed to see a concrete divider after being persuaded to abandon a nighttime protest he was staging at his daughter’s childcare centre has lost a claim dispute with his insurer.

The father drove to the centre at around 10pm on a Tuesday night in June two years ago and prior to the accident, had parked across a driveway in protest, placing his daughter’s toys and other items on the ground nearby.

His partner and a friend attended the protest, the friend later saying he appeared very upset due to a custody battle and allegations made by his ex-partner but he later calmed down a little and was persuaded to go home.

The father then collected the toys and other items and drove into the childcare car park to conduct a U-turn and leave. Video footage, which the father later alleged was heavily edited, showed the vehicle hit the concrete divider between parking spots and launch slightly into the air before impacting the childcare centre.

He then walked away from the accident scene and became lost before eventually returning to his partner’s residence at 5am and calling police, who attended the scene.

The Australian Financial Complaints Authority (AFCA) ruled in favour of RAA Insurance, which had declined a claim for his 2015 Caprice which was insured for $38,250.

AFCA said that as the father later left the scene of the accident he had prejudiced the insurer.

AFCA’s ombudsman was “not satisfied” the incident was caused by a deliberate or illegal act but said the driver was careless and the video footage showed he entered the carpark at an unsafe speed which likely resulted in an oversteer, loss of control and the impact to the childcare centre.

"The complainant was in a highly emotional state. This was likely due to a dispute with his ex-partner involving custody arrangement,” AFCA said. “His careless driving is consistent with this mood as opposed to someone who recognised the danger of his actions and then recklessly courted this.”

However, AFCA said the driver’s explanation about his movements after the accident and justification of head trauma was “not compelling” and his confusion and inability to account for his whereabouts for around 8 hours before calling police “cannot be readily explained in the absence of drugs or alcohol”.

"Due to the complainant making himself unavailable to the police for such a long period of time, there was no chance for the police, or any witnesses, to be able to investigate this issue,” AFCA said. "The insurer has been substantively prejudiced by this act”.

A nearby witness told RAA’s investigator the man was quite agitated and yelling in an aggressive manner and he left the vehicle for a short time before coming back with an unidentified large clear bottle. The witness reported hearing someone yell "You‘re going to lose your licence from this, you‘re gonna regret this", which AFCA said indicated “he was not in a safe position to operate the vehicle for some reason”.

RAA provided a forensic report from an Associate Professor who concluded the man braked briefly but was travelling above 30km an hour on hitting the kerb and that the the driver applied his brakes intermittently and took his foot off the accelerator, although perhaps only about half a second prior to the collision with the building.

“The analysis revealed a driving manoeuvre which was characterised by maximal acceleration applied while entering a car park,“ AFCA said. “The data indicate continued acceleration and no attempt at steering away from the building, however as the vehicle was airborne that there would have been almost no likelihood of regaining control at that point, or altering the trajectory of the vehicle.”

"In my opinion, the crash and the consequential damage was a direct result of the claimant’s manner of driving in the car park,” the ombudsman said. “The loss of vehicle control and the continued application of acceleration and only late braking indicates a manoeuvre that was, at least, reckless.”

AFCA rejected RAA’s reliance on a "Wilful or reckless act” and “Illegal act” exclusions, saying both required evidence he had intended to cause the damage and that had not been established.

The insurer must instead rely on its policy condition that denied cover for "failing to remain at the scene of the incident long enough for interested parties to attend and/or to exchange relevant details”.

See the full ruling here.