In brief – Insurers should consider effect of the Versloot decision on marine insurance in Australia
Director lies about bilge alarm sounding to reassure insurers about vessel's seaworthiness and functioning alarms
The insured claimants were the owners of the cargo vessel “DC MERWESTONE” which was incapacitated by a flood in her engine room which damaged the main engine beyond repair.
The owners of the vessel made a claim for €3,241,310.60 under a marine insurance policy which extended to loss attributable to crew negligence (unless the owners were personally guilty of want of due diligence) and unseaworthiness (unless the owners were personally privy to it). The cause of the damage was found to be a combination of crew negligence, contractor’s negligence and unseaworthy pumps. However, the owners were not personally guilty of want of due diligence nor were they privy to the unseaworthiness. Accordingly, the loss was covered under the policy (at ), with the proximate cause being the perils of the sea (namely the fortuitous entry of sea water during the voyage).
The insured was asked by insurers to explain the ingress of water into the engine room and the pump’s failure to control it. Importantly, one of the owners’ directors asserted that the bilge alarm had sounded nine hours before water was seen under the floor plates of the engine room and that no action had been taken by the crew because it was attributed to the vessel rolling in heavy seas. This was a lie which was intended to reassure the insurers that the vessel was not unseaworthy and that its alarm systems were working satisfactorily. It was designed to divert the insurers’ focus from the state of the vessel and the possible privity of the owners to any unseaworthiness (which would have precluded cover under the policy) (at ).
Fraudulent claims rule does not extend to bar insured's claim where "collateral lie" employed
It has been well established in English law that the fraudulent claims rule operates to bar the whole of an insured’s claim where that claim is either wholly invented or fraudulently exaggerated. The issue in the Supreme Court was whether the fraudulent claims rule extended to bar the insured’s claim where it had not invented or exaggerated the claim but had employed a fraudulent device, termed a collateral lie, to embellish or bolster a claim in circumstances where the underlying claim was nevertheless recoverable under the policy (at ).
Relevance of collateral lies and proportionality among majority's reasons for overturning the Court of Appeal
In the leading judgment, Lord Sumption drew a distinction between a fraudulently exaggerated claim and a justified claim supported by collateral lies stating at  - :
Where a claim has been fraudulently exaggerated, the insured’s dishonesty is calculated to get him something to which he is not entitled.
The position is different where the insured is trying to obtain no more than the law regards as his entitlement and the lie is irrelevant to the existence or amount of that entitlement. In this case the lie is dishonest, but the claim is not. The immateriality of the lie to the claim makes it not just possible but appropriate to distinguish them. I do not accept that a policy of deterrence justifies the application of the fraudulent claim rule in this situation.
Ultimately, Lord Sumption (with Lords Clarke, Hughes and Toulsen agreeing) determined that the extension of the fraudulent claims rule to collateral lies found to be irrelevant would be “disproportionately harsh to the insured” (at ).
Lord Sumption considered that a relevant collateral lie needed to be material to the claim in order for the fraudulent claims rule to apply and advanced a test for materiality assessed by reference to hindsight. Importantly, Lord Sumption considered that the materiality of a lie should be assessed by reference to the merits of the claim as determined by the Court rather than at the time when the lie was actually made and therefore differed (at ) from the view adopted by Lord Mance in Agapitos v Agnew (The ‘Aegeon’)  QB 556
Lord Mance raises serious concerns about claimants' ability to lie with impunity and materiality test
In a strong dissenting judgment, Lord Mance raised serious concerns regarding the abolishment of the fraudulent devices doctrine noting at :
Abolishing the fraudulent devices rule means that claimants pursuing a bad exaggerated or questionable claim can tell lies with virtual impunity. The same logic governs fraudulent devices as it does fraudulent claims generally. It is as Lord Hobhause said in The Star Sea para 62:
"…simple. The fraudulent insured must not be allowed to think: if the fraud is successful then I will gain; if it is unsuccessful, I will lose nothing."
In short, on the approach advanced by the majority, the fraudulent device will advance the insurance recovery if undiscovered, and quite possibly lead to the recovery of a bad or exaggerated claim, and it will have no effect on any insurance recovery to which the assured may be entitled, even if it is discovered. …
Lord Mance also disagreed with the test for materiality advanced by Lord Sumption, considering that the materiality of the lie ought to be assessed in its context at the time when the fraudulent device was deployed and that to do otherwise "makes no sense" (at ).
Tiep Thi To decision and application of section 56 of Insurance Contracts Act likely to still be followed in most Australian jurisdictions
In his leading judgment, Lord Sumption considered the case law in Australia, noting that the application of the fraudulent claims rule to valid claims had exhibited the same differences of opinion as the English cases. In this regard, Lord Sumption referred, at , to the differing conclusions reached in GRE Insurance Ltd v Ormsby
 29 SASR 498 and Tiep Thi To v Australian Associated Motor Insurers Ltd  VSCA 48
We note that section 56(2) of the Insurance Contracts Act touches on the notions of proportionality identified in the reasons of the majority decision in Versloot. That section provides that “if only a minimal or insignificant part of the claim is made fraudulently and non-payment of the remainder of the claim would be harsh and unfair” the Court may order the insurer to pay "such amount as is just and equitable in the circumstances.” In Buchanan JA’s analysis of the provision in Tiep Thi To, his Honour noted that it applied to a fraud relating to only part of a claim. He said further that where the fraud related to the entire sum claimed, the division contemplated by the subsection could not be achieved. Further, and importantly, section 56(3) specifically underlines the importance of deterring fraudulent conduct and allows the court to "have regard to any other relevant matter". This is consistent with the reasoning in Lord Mance's dissenting judgment in Versloot for extending the fraudulent claims rule to collateral lies.
Insurers should consider including contractual terms dealing specifically with fraudulent devices
The decision in Versloot has resulted in the removal of a significant deterrent to fraudulent claims in relation to marine insurance in the UK. It will also have more general application in the UK as although section 12
of the Insurance Act 2015 (UK)
(which comes into effect from 12 August 2016) encompasses fraudulent claims, it has left open how it would apply to the fraudulent devices extension.
Adopting the suggestion by Lord Mance in Versloot, insurers may be well advised to consider including contractual terms which deal specifically with fraudulent devices used by an insured during the claims process.
While the Versloot decision will be relevant to the law of marine insurance in Australia, section 56 of the Insurance Contracts Act will continue to govern fraudulent claims in relation to non-marine insurance.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2023.