Motor Vehicle
Insurance
Clearly informed
theft or fraud
John Price
June 2011
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Is it fraud? Is it theft?
Barry’s bad luck
A case study and discussion exploring the process and
procedure before the Financial Ombudsman Service
when considering a fraud dispute.
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How we conduct ourselves
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How we start our investigation
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How we review our position
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The Power of the Paradigm
“a model, theory, perception, a frame of
reference”
The way we see things....perception,
understanding, interpreting
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Our perceptions, our understanding is shaped
by the map, by the position from which we
start
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People are fundamentally honest
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FOS is not a court
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It’s an alternative not a substitute
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Inquisitorial not adversarial
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TERMS OF REFERENCE clause 8.2
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What is fair in all the circumstances
Legal principles
Applicable industry codes
Good industry practice
Previous relevant decisions (not binding)
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FRAUD
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Guided by the TOR’s and Briginshaw test
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Balance of probabilities
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Clear, cogent evidence
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Circumstantial evidence...rely on the
inferences to be drawn from the established
facts.. i.e. What is the more probable
Fraud
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A matter of Intent
The mental element required to establish
fraud is an intention to deceive, that is an
intention to create a false belief in the person
deceived for the purpose of obtaining money
or some other benefit.
Buchannan JA To v AAMI (2001) 3 VR 279
Fraud
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Motive
Character/Credibility
Opportunity
Forensic evidence
Fraud
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Mr Justice Young, ALJ 1997
Usual v Unusual
Witness consistency
Do not rely on observations of demeanour
Observational evidence needs to be tested
Do not be misled
Cultural Characteristics
Just because a person is shown to be a liar does not
establish something is so (e.g. claim to be somewhere but
proven not to be does not establish fraud)
Fraud
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FOS not strictly bound by rules of evidence
Use of Hearsay
Unsigned statements
Coincidence
Non co-operation
Provide all the information
Fraud
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Special Circumstances
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Expert evidence...Hired guns or independent
experts
Is it theft or fraud?
BARRY’s BAD LUCK
QUESTIONS