A car owner who wanted her insurer to cover third-party damage caused by her son has been denied a payout after the complaints authority ruled he had probably been drink-driving.

The claimant’s son, referred to as M, was involved in two crashes while driving to a service station on February 4 2021 about 11.30pm.

The son said the first smash occurred when an animal ran onto the road, causing him to swerve into a parked car. 

He said the second happened when a car unexpectedly drove through an intersection to his left. He said he avoided the car by swerving but hit a brick fence. The vehicle then flipped onto the driver’s side. 

The mother lodged a claim nearly a year later for car damage worth about $90,000, plus third-party damage, including $49,838 demanded by the brick fence owner. 

RACQ Insurance said the son was under the influence of alcohol while driving and it would not cover the third-party damage. It accepted that the policyholder was unaware of her son’s state and agreed to cover the damage to her vehicle. 

A police report said M showed below the legal limit when breath-tested at the scene but appeared to be “affected by alcohol”. A blood sample taken while M was in hospital showed his blood alcohol content was 0.225%, well above the limit. 

The insurer said the attending police officer told its investigator the roadside breath test “had been acting up” and the initial test was inaccurate. 

A police court brief said M drove through a red light and “appeared to be affected by unknown substances, struggled to speak, and struggled to answer reasonable questions”.

M said he drank only two standard glasses of white wine about 5pm.

He was charged with drink-driving, but the case was dropped after his lawyer raised chain-of-custody concerns. He pleaded guilty to a separate charge of careless driving. 

RACQ Insurance submitted a report from a forensic medical expert who said M would have returned a zero reading on the breath test if he had consumed only two glasses earlier in the evening. The expert said M would have had to drink 13 to 17 standard glasses to reach his recorded blood alcohol content.

The mother told the Australian Financial Complaints Authority the insurer’s reports were unreliable and there were “significant issues” with how the hospital collected M’s blood sample. 

But AFCA says there was substantial evidence from the police, the blood sample and the expert’s report to indicate “more likely than not that M was under the influence of alcohol and over the ... limit at the time of the collisions. Further, his being in those states can reasonably be regarded as being capable of causing or contributing to the collisions.” 

It has also rejected the complainant’s bid for compensation due to delays with the insurer’s decision, finding the legal circumstances of the claim warranted an extensive investigation. 

Click here for the ruling.