Grappling with Fraudulent Insurance Claims and 'Collateral Lies': Comparative Insurance Law Developments in the United Kingdom and Australia

摘要

Insurance fraud in the UK and Australia has very significant financial impact upon insurers, their policyholders through increased premiums, and more generally upon the countries' respective economies. This problem is longstanding and, if anything, the evidence suggests that it is increasing rather than diminishing. What is new is how the legislatures and the courts have in recent years intervened in the context of insurance fraud in both countries in an endeavour to re-balance the respective rights and responsibilities of the insurer and the insured. In this regard, the article considers the legislative approaches adopted in relation to fraudulent insurance claims under the Insurance Act 2015 (UK) and places in a comparative perspective the parallel developments in Australian insurance law since the passage of the Insurance Contracts Act 1984 (Australia). Further, it considers recent case law, such as the 2016 Supreme Court determination as to whether "collateral lies "fall within the ambit of the fraudulent claim rule, the impact of "exaggeration and/or little lies" upon otherwise valid claims, and constraints upon the unqualified operation of contractual terms excluding liability regardless of fraud. Given that a careful balance between the parties must be maintained, especially in insurance where the essence of the transaction is the transference of risk from one person to another, the article considers whether these interventions, have achieved "balanced landings".