FRAUD: NOW PROVE IT!

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1 FRAUD: NOW PROVE IT! By Trevor Darge Partner, SRB Legal Insurance Lawyers Summary Law enforcement officers, expert witnesses and investigators, including insurance investigators, work tirelessly to prevent fraudulent claims, including motor vehicle claims, from succeeding. Sometimes a theft is a genuine theft and sometimes it is a deliberate scheme, perpetuated by criminals of varying degrees of intelligence, designed to take money to which they are not entitled from an insurance company. All the investigative work in the world will be wasted, however, if the case against the fraudster fails at the last hurdle. This Paper This paper encompasses several issues relating to proving cases involving motor vehicle related fraud including: 1. the burden of proving the case; 2. the standard of proof; and 3. the lessons learnt from decided cases and personal experience as to the best means of ensuring that the most effective case is presented both in terms of the preparation of reports and appearing in court. 1

2 Forms of Fraud Considered Motor vehicle related fraud takes many forms. The frauds I am experienced in challenging are those where an insured person lodges a claim: 1. for the theft/disappearance of their own vehicle; 2. for the destruction of their vehicle by fire; 3. for damage to their vehicle in a suspicious accident; 4. for damage to their vehicle in unusual circumstances. An example of point 3 would be a staged accident scenario. An example of point 4 would be a single vehicle accident where alcohol is suspected to be a factor. Who Is Providing the Evidence? Evidence in fraud cases generally comes from a variety of sources: 1. Insurance claims officers/underwriters; 2. Internal Investigators; 3. External investigators; 4. External Experts. In turn the range of external experts includes: 1. Accident Reconstruction Experts; 2. Fire Investigators; 3. Expert Mechanics; 4. Engineers; 5. Locksmiths. 2

3 The Burden of Proof It is trite to say that the prosecution bears the burden of proof in criminal matters and that the plaintiff has the burden of proof in civil matters. But is the issue really so straight forward? Criminal Context: In a criminal context the answer is invariably "yes". The burden of proof never shifts from the prosecution and the alleged fraudster is perfectly entitled to let the State do all the work and a benefit from any weaknesses or vagueness the jury or Magistrate perceives in the evidence. Civil Context: Civil matters are slightly more complex. The burden is capable of shifting depending on who is making the assertion. Any claims brought under the policy are, of course, subject to the terms and conditions of that insurance policy as tempered by the provisions of the Insurance Contracts Act. S56 Insurance Contracts Act Section 56 of the Insurance Contracts Act provides that an insurer may not avoid the contract but may refuse the payment of the claim where the claim is made fraudulently. 3

4 This effect is softened somewhat by section 56(2) which obliges an insurer to pay a just an equitable amount where a minimal or insignificant part of the claim is made fraudulently. In exercising this power, however, the court shall have regard to the need to deter fraudulent conduct in relation to insurance as well as any other relevant matter. In Tiep Thi To v AAMI Ltd [2001] VSCA 48 the Victorian Supreme Court considered a case where a mother had asserted that she was the driver of her car at the time of an accident. She was not. Her son was driving. She lied to the insurer in the mistaken belief that if she told the truth the claim would be denied. The Court found that s56(2) applied where only a part of a claim was false, such as an overstatement of contents, and not where it was a fraud affecting the whole of the claim. Relevance of the Policy Wording The burden of proof applies differently according to the wording and nature of the policy in question. The relevant question is whether the element that needs to be proved is part of the insuring clause or the subject of an exclusion clause. In the recent case of McLennan v Insurance Australia Limited [2013] NSWDC 148, the District Court of New South Wales was presented with a situation where a property was destroyed due to arson. Extensive evidence was presented pointing to the involvement of the insured in that fire. However, the Judge hearing the matter was convinced by experienced Senior Counsel that the insured had the burden of proving that they did not burn their own house. This finding was overturned by the New South Wales Supreme Court, Court of Appeal [2014] NSWCA 300 late last year. The court analysed the insurance policy in question which contained three sections. The first section provided fire cover for the home and contents. The second section indicated what 4

5 replacements and repair options were available in the event of a claim and the third section stated that the insurer would not cover loss or damage as a result of fire started with the intention of causing damage by you or someone who lives in your home, or who has entered your home or site with your consent or the consent of a person who lives in your home. The appeal court was unanimous. The insured bore the burden of proving the existence of the policy and the happening of the insured event, namely the fire. It was for the insurer, relying upon the exclusion clause, to establish that the fire was deliberately lit in such a manner that it was entitled to deny the claim. Interestingly, the Court of Appeal did not take the step of examining the evidence detailed in the Trial Judge s findings. In claims where the allegation is theft or accident the insured retains the burden of proof. This was re-iterated, with different results, in two NSWCA decisions Hammoud Brothers Pty Ltd v Insurance Australia Ltd [2004] NSWCA 366 and Insurance Australia Ltd v El Kabout [2014] NSWCA 426. Bates v Certain Underwriters at Lloyds [2014] VCC 304 is a Victorian case where the insured had the burden of proving that his vehicle was sideswiped whilst unattended outside his house. 5

6 The Standard of Proof Again, on the face of it, this would seem a straight forward matter. The Criminal Standard In the criminal jurisdiction the standard of proof is the well-known beyond reasonable doubt. The Civil Standard Additionally, in the civil jurisdiction the standard of the balance of probabilities is equally well known. Thus where the insured has the burden of proof and asserts that their vehicle was stolen or damaged by accident the standard of proof is the ordinary civil standard. A Third Standard However, the courts have established, somewhat uneasily a third standard of proof in applying cases where the insurer asserts and is required to prove that the loss involved fraudulent conduct. This is not a new amendment to the well-known standard. Its origins lie in the High Court decision of Briginshaw v Briginshaw [1938] HCA 34. Interestingly, that case had nothing to do with insurance fraud or even fraud itself. In that case a husband petitioned for divorce on the basis of his wife s adultery. The Trial Judge could not decide who was to be believed after hearing the evidence and made the statement that if this were a civil case I might well consider that 6

7 the probabilities were in favour of the [husband] but I am certainly not satisfied beyond reasonable doubt that the evidence called by [him] should be accepted. His Honour Justice Dixon said the truth is that, when the law requires the proof of any act, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected. In that case the court found that the Trial Judge ought not to have considered this a situation where adultery had to be proved beyond reasonable doubt. 7

8 However, the evidence did not amount to more than suspicion of adultery. That was not enough. The Briginshaw Test, as it has come to be known, has been applied since the 1930 s to deal with all manner of cases where fraud or criminal conduct is alleged. It is relevant to all cases involving allegations of insurance fraud. Practical Application of the Test: The question then is how that test is applied in practice. The application of the Briginshaw test has often proved elusive to insurers and lawyers to follow. Whilst the message is clear the level of evidence produced in support of the case must be more compelling than in ordinary civil case it is not clear how this is to be applied. When reviewing and investigators report it is hard to draw a line on which either side represents success or failure in proving fraud. In Neat Holding Pty Ltd v Karagan Holdings (1992) 7 ALJR 170 the High Court confirmed that the civil standard was the balance of probabilities even if the conduct involved fraud or criminal conduct, however: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our 8

9 society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. Therefore, the question to pose when reviewing a report is whether the factual background and evidence is enough to justify so serious an allegation as criminal conduct. Mere disbelief in the insured s version of events is not sufficient. In Craig v Associated National Insurance Company Limited [1984] 1 Qd R 209, a decision of the Queensland Supreme Court, it was asserted that the insured set fire to his own fishing vessel in order to claim the insurance monies. He was the only person aboard the vessel when the fire started and the Trial Judge did not accept his version of events that he accidently started the file when looking for some cigarette papers. His Honour described the insured as an unsatisfactory, unreliable and unconvincing witness. However, the fact that he did not accept the insured s evidence and rejected his account of the cause of the fire was not the end of the matter. It remained for the insurer to satisfy him affirmatively on the balance of probabilities that the insured deliberately lit the fire. His Honour examined in great detail the circumstantial evidence leading to the question of whether the fire was deliberately lit by the insured. The boat had been designed and constructed by the insured, who was not an experienced boat builder. It was of a novel design and proved uncontrollable in certain conditions. The insured s project to construct the vessel and carry out a commercially successful fishing operation was in tatters when the fire occurred some six weeks after the boat was first launched. Although evidence of untruths in and out of Court was not proof of deliberate arson the Judge however found that where the circumstances of the fire led to a 9

10 strong conclusion that it had been deliberately set the conduct of the insured in telling untruths was a factor in establishing his responsibility. The court must give clear reasons explaining the basis of their decision. In Daoud v GIO General Limited [2011] NSWSC 1001 the insurer declined to pay under the policy alleging that the damage to the insured's vehicle occurred during a staged accident. Technical evidence was presented suggesting that the accident could not have occurred in the manner described by the insured. The court emphasised that a finding of fraud could only be made on the basis of cogent evidence meeting the test enunciated in Briginshaw. However, the magistrate hearing the original case described the insured as "a very good witness" before deciding that he had staged the accident. The appeal court found that where a magistrate made an affirmative finding in favour of a party that it was essential for there to be a proper analysis of expert opinion evidence called to establish a defence of fraud against the insured. 10

11 The Expert Report In practical terms there are only a few steps in the investigation process. The stages are: 1. the incident occurs; 2. the claim is lodged; 3. the claim is investigated; 4. a decision is made; 5. litigation is commenced; 6. discovery of documents takes place; 7. the Trial. Generally the window is fairly small for an investigator to contact and interview the insured, prepare and finalise a report and submit the report for the decision to be made. The formal decision is essentially the line in the sand. Once the claim has been rejected it may go through internal dispute processes and the Ombudsman s Office but generally there will be no scope for further investigation or at least investigation which involves the insured. By the time a formal decision is made there should be at least one report justifying the basis of the decision. Following on from that decision there may well be subsequent reports dealing with expert issues. There are a number of aspects of reports both investigative in nature and technical that are important to success. 11

12 In some jurisdictions expert witnesses are subject to Codes of Conduct which were introduced to provide a guide for experts rather than a formal set of Court rules. Minimize the Number of Reports Try to confine the investigation into as few reports as possible. Whilst it might be understandable that an ongoing investigation would require updates and exchanges of further documents, each further report introduces potential for inconsistency and the introduction of doubt. A Magistrate or Judge, working a busy trial list, is particularly likely to be unimpressed they are required to wade through pages of investigators thoughts and procedural steps if the effect of the report is minimal due to later amendments and clarifications. By all means outline in the report the procedural steps to indicate the thoroughness of the investigation but don t labour the minutiae. Unless it is specifically relevant the Court doesn t need to know how many properties you had to visit to speak to a witness. If possible a single report should be prepared based on the summation of the evidence gathered with interim correspondence with the client being purely of an update nature. Only Report When You Are Ready to Do So There is undeniable pressure on experts and investigators to deliver their reports promptly. This is preferable both from the insurer s perspective and the insured s. Delays on the part of the insurer can seem like tactical attempts to wear down an insured and can lead to an award of interest at the high rate under the Insurance Contracts Act. 12

13 Against that concern, however, is the need to get it right. I currently have a matter before the Supreme Court where the expert determined and reported that damage to property occurred due to the presence of a certain substance in the soil. The detailed report, which cost tens of thousands of dollars, was subject to independent testing. The Writ was issued on the basis of that report. The testing was done and the substance was nowhere to be found. An alternative theory has now been put forward. The effect of reporting too soon has been to undermine the credibility of the expert. He may have been constrained by cost but the action is now problematical. The lesson is clear. If the effect of the report depends upon other materials being received don t go to print until they have been received. Make it Simple. Experts like engineers, locksmiths and fire investigators have a professional protocol to follow, knowing that their reports are required to stand up to scientific scrutiny. Yet the flipside of this requirement is for experts to prepare reports so thick in scientific data and verbiage that no competent judge could possibly understand it. Judges are attracted to theories that are easy to follow and clear in their implications. A solution is to provide an executive summary at the beginning of the report which sets out, in easy to follow language, the conclusions reached. The summary is not expected to stand up to scientific scrutiny however it does give the parties and the judge a clear understanding of the technical issues. 13

14 Make the Language Impartial The report should proceed on an entirely impartial basis. That much is obvious but it is easy to allow personal thoughts to influence the tone and language of a report. The language should neither be couched in terms of cynicism of the insured s evidence nor blind acceptance of the insured s comments and apparent virtues. Whilst professionalism is generally the order of the day I have seen reports that unfairly refer to an insured s ethnicity or background, including their associates, as suggestive of untrustworthiness. In a recent case the Magistrate stated: Mr X was a (expert) witness for the Claimant. I agree with the defence submissions that I must treat this witness evidence with circumspection. He made the remarkable declaration that he held (the Insured) to be an honest person because of the religious objects relating to the Christian faith he observed on display Neither of those comments had any place in a factual report. Both would lead to intense cross-examination and an attack on the credit of the witness. Whilst it is understandable that an investigator may wish to provide an opinion on the quality of the evidence those value judgements are probably best left to the insurer when deciding whether to accept or decline a claim and the Judge or Magistrate when deciding on the case. 14

15 Both Versions of Events are Equally Reliable Actually this should say, both versions of events are equally reliable, until proven not to be. A consistent failing of expert reports is where the investigation proceeds on the basis of testimony provided by the person for whom the expert acts. In a current matter, yet to be tried, an expert has provided a report based on a version of events purely taken from his client s statement. He has concluded that the damage could not have occurred as the physical damage to the vehicles is at odds with his client s version of events. He has not even considered whether the damage is consistent with our client s version of events. Another quote from the Magistrates decision above: Further, he was certainly influenced by the version of events as told to him by the Claimant. Use Appropriate Sources The credibility of a report is only as good as the quality of the sources of information. A final extract from the Magistrates decision: as well as relying on hearsay evidence of articles he had located from the internet. The internet is a wonderful source of information but it is just as often a repository of unproved allegations and half-formed truths. Only recognized published texts or journals can be used as sources 15

16 APPEARING IN COURT Investigations may have been thorough, the report produced may be well grounded and persuasive and yet it is still possible for the case to be lost in Court. There are several aspects of the presentation of a report in Court that may improve the chances of winning. They are listed below in no particular order: Appropriate Dress Giving evidence in Court sometimes makes people feel obliged to dress in a different way from their usual professional clothing. This does not mean a mechanic should appear in Court in overalls. However, a smart casual appearance is preferable to putting on a rarely used suit. The reasoning behind this is simple appearing in Court is stressful enough without adding a further layer of uncomfortably and drawing the Court s attention to your appearance. State of Readiness It is not always possible to take a report or documents in to the witness box. However, it is important to have a short folder containing those documents in a logical order in the event that the Court, for reasons of efficiency, does allow access for the witness to the folder. There is nothing more annoying than a witness shuffling through documents whilst an impatient judge looks on. It reflects on the professionalism and order of the witness. 16

17 Address the Court Although the questions are being asked by the lawyers the witness should, without being rude, address responses to the Judge. The greater the opportunity to observe the witness face when giving evidence the greater the likelihood that the evidence will be accepted. It also limits the likelihood of arguments between lawyers and the witness. Maintain an Even Temperament It is the job of the opposing lawyer to get under the witness skin and try to undermine their credibility. The natural temptation is to respond with either heated remarks or, even worse, sarcastic comments. Whilst one is an understandable response the other is unacceptable. On more than one occasion where I have questioned the findings of an expert much to their chagrin, I have been met with a comment well, what would you know. The comment is probably valid but the response undermines the witness credibility. The Judge or Magistrate, like the lawyer in Court, is also a legal practitioner untrained in the experts specific discipline who is bound to be disturbed by any insulting comment. Be Consistent but Not Inflexible In most trials involving allegations of fraud there are witnesses on both sides giving expert evidence of a technical nature. Those witnesses often cannot agree. However, when comparing the weight to be given to each expert s evidence the Courts are wary to adopt the findings of witnesses who appear intractable or argumentative when it comes to alternative theories. There is a strong difference between recanting evidence in the witness box and agreeing that an alternative version of events is possible. 17

18 In a recent NSW Supreme Court decision, involving technical issues, the Judge made it quite apparent what he felt about one of the key witnesses: In my assessment, Mr X s readiness to advance opinions which lacked support served to undermine any standing he might have had as a credible and reliable witness on matters about which there was a contest, including, in particular, his challenges to the plaintiffs' witnesses on the cause of the fire and explosion. Only Give Evidence On Matters Within Your Experience It seems overly obvious but a key criticism of witnesses is that they provide opinions on matters for which they have not been trained. This can be a poor reflection on the case particularly if the opposing party produces an expert on that key branch of knowledge. As lawyers it can be equally annoying that a witness has to be called for every branch of knowledge ie. Mechanical issues, auto-electric matters, locksmith issues, fire cause. However, that simply comes with the territory. My overall impression of Mr Xs evidence was that he ventured opinions on numerous issues without the necessary factual basis, qualifications, and experience to do so, and demonstrated an absence of scientific rigour in propounding a theory which was doomed to dissolve when subjected to objective analysis and scrutiny. It is difficult not to accept that had the theory been tested before it was tendered, its weaknesses would soon have been exposed. I was left entirely unconvinced of its fundamental soundness. 18

19 Some Examples of Successes/Losses A Plan Without an End The insured purchased a car for his wife, who did not have a license, and managed to insure it for an amount significantly above the market value. His evidence was that he travelled to Melbourne for a wedding and arranged for the vehicle to be transported by rail to Melbourne so that he could drive it around Melbourne and to and from the wedding. On the day he was leaving Melbourne the insured had an accident in the vehicle in an area not directly on route to the airport. There were several factors which called into question the genuineness of the collision. The investigator thoroughly canvassed the circumstances of the accident perceiving that this was the most relevant point at which a fraud could be established. It was almost as an afterthought that the investigator requested that the insured produce the return ticket for his vehicle. He was unable to produce it. In order to save money the insured had failed to perfect his scheme and not purchased that return transport. The claim was withdrawn. Quick Thinking/Slow Thinking The insured made a claim for his motor vehicle which was stolen outside a popular Perth night spot and found its way to a popular place for disposing of stolen vehicles. This claim was made in an era when mobile phones were fairly new but the investigator insisted on obtaining his call records. The insured used his own mobile phone to call the police when he realised that the car was missing not thinking that the cell tower pings would show that his phone moved from the night club to the disposal area and back again. When presented with 19

20 this information at a Pre-Trial Conference the best that the insured could come up with was that he had lent his phone to someone at the night club and they did not give it back until some hours later. When he then realised that this would implicate a friend in the theft and destruction of the vehicle he clarified that he had lent it to a stranger he had met that evening. The case was withdrawn after the Pre-Trial Conference. The Halo Effect Investigators often, with good reason, believe that they are a good judge of character. However, the character of an insured when under investigation can vary greatly from their appearance in Court a year or two later. The insured had a BMW motor vehicle. It was his birthday. He drove the car into the Northbridge area of Perth, the night club district and parked it in a dark street. He then proceeded to have eight vodka and pineapple juices and decided he could not drive home. His car disappeared and was found burnt out. The investigator did the right thing and obtained phone records however due to a problem in the towers on that day they did not reveal the location of the calls and he was able to explain them. The insured had the vehicle insured for a decent sum but the investigator was unable to find any evidence of a motive as he was not short of money to any great degree. Nevertheless the appearance of him to the investigator raised an unshakable conviction of his guilt. He was sly and evasive and associated with a person known to be a criminal identity. In Court he was confident, humble and well spoken. After giving evidence he had clearly impressed the Magistrate. At the conclusion of the crossexamination the Magistrate was ready to adopt him. The case was settled in favour of the insured. 20

21 Lead-Foot The insured claimed that upon starting his car the accelerator depressed itself and the handbrake failed to restrain the car, causing it to shoot out of his garage and into a neighbouring house. The investigator report focussed on the inconsistencies in the insured s evidence and the evidence of neighbours suggesting that they heard a loud squealing of tires before the impact, pointing towards a deliberate act of the insured. A case based on extensive technical evidence was unsuccessful. The expert evidence completely discredited the argument that the insured s vehicle drove off by itself but the Magistrate refused to accept that he deliberately accelerated his car. A reasonably late amendment to the claim that his foot may have accidentally hit the accelerator rather than the brake was all that was needed to raise sufficient doubt that he had breached the policy terms and conditions. The case was lost. Staged Accident An insured lodged a claim in respect of a vehicle involved in a collision at night in a light industrial part of town. The insured said that he was visiting his friend. He hadn t told the friend he was coming so there was no alibi to check. The party with whom he had the accident ended up going to prison for unrelated matters. The solicitors instructing me determined that the evidence of the other party would not assist the case and he was not called. Technical evidence from an accident reconstruction expert convinced the Magistrate that the version of events given by the insured was unlikely. The Magistrate did not accept the insured s expert on the important issue of the area of impact and the suggestion that only one of the vehicles involved was moving. However, the case failed at the final hurdle. Her Honour was not prepared to accept that the insured would have deliberately placed himself in a position of danger by staging an accident where he could have been seriously injured. 21

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