Court disapplies QOCS protection in favour of HF Scotland, Zurich

Verdict should act as a "clear deterrent"

Court disapplies QOCS protection in favour of HF Scotland, Zurich

Legal Insights

By Kenneth Araullo

The All-Scotland Sheriff Personal Injury Court (ASSPIC) has sided with HF Scotland and Zurich in a legal proceeding as both have attained the disapplication of Qualified One-Way Costs Shifting (QOCS) protection due to fraudulent representation and manifestly unreasonable conduct by the pursuer.

The case, Natalia Musialowska v Zurich Insurance Plc, revolved around an incident where the pursuer acted as a passenger in a stationary vehicle within a line of traffic. Zurich’s insured individual was in the vehicle ahead and cautiously attempted a U-turn, realising the need to reverse as the manoeuvre couldn’t be completed. During this slow reversal, the vehicle in which the pursuer was a passenger moved forward, resulting in a minor collision.

After hearing accounts from the pursuer and her partner, the court reached several conclusions:

  • The evidence presented regarding the point of impact was deemed incredible and unreliable, seemingly adjusted to align with alleged damage on the insured individual’s vehicle. While the pursuer and her partner asserted the rear nearside of the insured’s vehicle as the point of impact, courtroom testimony revealed the rear offside as the actual point of impact. The insured party confirmed no damage to their vehicle.
  • Inconsistencies emerged concerning claims that the insured had struck the pursuer’s vehicle twice, leading to evasive responses as it became apparent that the initial allegations were unsubstantiated.
  • Examination of photographs of the pursuer’s vehicle displayed multiple areas of damage inconsistent with claims that all damage was related to the accident.
  • As their narrative disintegrated, the pursuer and her partner baselessly alleged tampering with the insured’s vehicle photographs or post-accident repairs, questioning the insured’s truthfulness without evidence.
  • The pursuer claimed loss of earnings due to multiple absences for physiotherapy related to accident injuries over a 4.5-month period. However, only one absence coincided with the appointments attended.

Given the unsatisfactory background, the court deemed both the pursuer and her partner as incredible and unreliable witnesses, leading to the failure of the claim. A motion was submitted to disapply QOCS and hold the pursuer responsible for legal costs, which was fully granted in a written decision from ASSPIC.

The court also labelled the pursuer as a “wholly incredible witness” and highlighted the fraudulent representation, citing significant issues with her evidence that surpassed the usual scenario of competing versions of events. The conduct was deemed manifestly unreasonable due to the pursuer’s premeditated decision to present false allegations.

“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,” Zurich head of claims fraud Scott Clayton said.

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