A driver who smashed into a tree and left the scene before police arrived has lost a claim dispute.

The man said he collected his car at an airport after working seven mining shifts of more than 12 hours. He dropped off a friend who left some empty premixed vodka cans in the vehicle, then hit the median-strip tree due to a “microsleep” at about 4am on October 22 2024.

The limited shoulder and off-road space made the location unsafe, he was in shock, dazed and fatigued, and was anxious to contact family and friends, he said.

Later, the driver answered one of several calls – showing as unidentified numbers – from police and was asked to return. He maintained he walked back, could not see anyone and had a “reasonable belief” officers had left. He did not have a number to call back, and did not wait given his safety concerns.

RACQ Insurance declined the miner’s damage claim under a policy condition requiring a driver to stay at the scene until police arrive, unless they have reasonable cause to leave.

In its dispute ruling, the Australian Financial Complaints Authority says police observed the insured was slurring on the phone, and there were empty cans and other alcohol in the vehicle.

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The claimant said his friend was the only one drinking, his stepfather could confirm his sobriety and there were no bank transactions confirming alcohol purchases.

AFCA says it is difficult to accept there was no safe place where the driver could have waited. He could have contacted police through general numbers, and it did not accept a microsleep was the only plausible accident cause.

If the claimant had remained at the scene, there was a realistic possibility he could have been tested and found under the influence of alcohol or drugs, the authority says.

“His failure to meet the police at the scene ensured this evidence would not be secured – evidence that would have been critical for the insurer to establish a policy exclusion for driving under the influence,” the ombudsman says.

AFCA found the complainant’s action “prejudiced the insurer to the full extent of the claim”. It has also declined a bid for a $5000 legal costs reimbursement.

See the decision here.