Steven Smart

In Natalia Musialowska v Zurich Insurance Plc, the pursuer was the passenger in a stationary vehicle in a line of traffic. Zurich’s insured was in the vehicle in front when she carefully commenced attempting a U-turn. Her vehicle was in the opposite lane when she realised that she could not complete the manoeuvre and required to reverse. As she did so slowly, the vehicle in which the pursuer was a passenger moved forward. A minor collision occurred.

Having heard from the pursuer and her partner, the court held that:

• Their evidence regarding the point of impact was incredible and unreliable, having been tailored to fit with damage allegedly observed on the insured’s vehicle. The pursuer and her partner were adamant that the rear nearside of the insured’s vehicle was the point of impact, where damage was said to have been seen. Their evidence in court, however, indicated that the rear offside of the insured’s vehicle was the actual point of impact. The insured was clear that her vehicle was not damaged.
• There was inconsistency regarding claims that the insured had struck the vehicle in which the pursuer was a passenger twice, with evasive answers being provided as it became apparent that the original allegations did not stand up to scrutiny.
• Photographs of the pursuer’s vehicle showed multiple areas of damage which were not consistent with allegations it was all related to the accident.
• As their account unravelled, both the pursuer and her partner made the serious allegation, without any evidence, that either the photographs of the insured’s vehicle had been tampered with, or the vehicle had been repaired following the accident and the insured was not telling the truth.
• The pursuer claimed to have sustained a loss of earnings as a result of multiple absences to attend physiotherapy treatment for accident related injuries over a four and a half month period. Of her eight absences, only one coincided with the appointments attended.
• The pursuer attended solicitors on the day after the accident and signed a medical mandate for production of her records, which was sent to her GP. That was before her only actual attendance at her GP, which took place four days after the accident.

Against what the court noted was a “very unsatisfactory background”, both were found to be incredible and unreliable witnesses and the claim failed. An application was made to disapply QOCS and for the pursuer to be found liable for the legal costs of the action. The motion was granted in full in a written decision from ASPIC.

The pursuer was a “wholly incredible witness” and had made a fraudulent representation. The significant issues with her evidence went “far beyond the more common scenario where there are competing versions of events and the court has preferred one version over the other”. The conduct of the action was also manifestly unreasonable given the pursuer’s premeditated decision to present false allegations. Furthermore, even with the late agreement of quantum at a significantly reduced level, it was appropriate for Counsel to have been instructed given the importance of defending fraudulent claims to the defenders and their policyholders.

Scott Clayton, Zurich’s head of claims fraud, said: “Zurich takes a very serious approach to responsibly detecting dishonest claims and defending our policyholders. I am delighted that the specialist personal injury court in Scotland has acknowledged that in the course of issuing a written decision disapplying QOCS protection in a fraudulent claim. The common-sense approach applied to the relevant legal tests should act as a clear deterrent for anyone tempted to rehearse a story to try and obtain damages.”

Head of HF Scotland, Steven Smart, said: “HF’s carefully tailored counter-fraud strategies have been developed to filter out claims involving the type of deception encountered in this case. What was presented by the pursuer as a supposedly straight forward claim was anything but.

“Our partner Val Pitt’s skill and diligence identified that there was no credible explanation for the pursuer’s allegations. The purported value of the claim came tumbling down as the action progressed. As John Thomson argued and the court accepted, this was not some mistaken recollection of circumstances but rather a premeditated attempt to say what was thought necessary to win the action. It is therefore encouraging that the court agreed the pursuer was not entitled to QOCS protection.

“It must not be lost sight of that such claims are not a victimless attempt to secure a payment. Zurich’s insured had the stress and practical implications of a live claim hanging over her for nearly two years. She was subjected to abuse in the aftermath of the accident and faced unfounded accusations in court that she had attempted to pervert the course of justice. It should be of reassurance to innocent parties that the court did not tolerate this behaviour.”