A driver who crashed his car has won a claim dispute despite recording a blood-alcohol level above the legal limit hours after the accident. 

The insured lodged his claim after crashing his 2006 Holden Commodore into a pole about 11pm on February 14, 2021. The car had been insured for $13,600 or its equivalent market value. 

RAA Insurance declined the claim under its alcohol and drug exclusion, noting a blood test revealed the man’s blood-alcohol concentration was 0.07%. 

The driver accepted he had been drinking before the accident but said he had only two or three beers over more than five hours.  

He said that after the crash, but before the blood test, he drank two or three shots of spirits, which caused his blood-alcohol reading to spike. 

Police conducted the blood test about two hours after the accident.  

The Australian Financial Complaints Authority’s dispute panel says a breath test was done about 15 minutes after the crash but the results are unknown because the insurer has not provided evidence from the police report or attending officers.   

RAA Insurance instead relied upon a report from a clinical forensic medicine professor, referred to as PO, who said the complainant had “grossly misstated” his alcohol consumption and it was “highly likely this impairment caused or significantly contributed to the collision”.  

PO said the driver would have had to consume between 107 and 175 grams of alcohol between 6pm and the blood test at about 1am to have achieved a 0.07% reading. PO said this would be equivalent to eight to 13 cans of beer or 11 to 18 shots of spirits.   

However, the professor’s report also accepted the reading “may have been as low as 0.03% at the time of the collision” if the man had consumed alcohol after the accident.   

The complaints authority says PO’s findings alone are insufficient to establish the man’s alcohol level at the time of the crash, or the effects of his alcohol consumption.  

Its ruling notes that an assessment of whether someone is driving under the influence can draw on several factors, including behaviour, the smell of alcohol, evidence of the person drinking and observations from witnesses.  

“PO’s report focuses on the complainant’s blood test results and the amount of alcohol consumed,” the authority’s adjudicator said. “However, there is limited observational evidence regarding the complainant’s behaviour at the time of the collision. 

“Therefore, I do not consider the insurer has established, on balance, that the damage to the vehicle occurred when the complainant was driving under the influence of alcohol. Further, the insurer has not provided sufficient information to show the damage to the vehicle was caused by the complainant’s [blood-alcohol] percentage or breath analysis exceeding the concentration prescribed by law in the relevant state or territory.”  

The determination indicates the vehicle was a total loss but says the insurer can conduct its assessment before settling the claim for the sum insured.  

Click here for the ruling.