Peter Jeffrey, Halliwell

Contentious losses: Evidence-led forensic investigations stand the test of time

Peter Jeffrey, Halliwell

May 17 2024

Even minor cracks in evidence capture will become exposed when it comes to recovery and repudiation.

Forensic investigations form part and parcel of many insurance claims in the Asia-Pac region. Whether a loss is complex, costly, or if there are expected to be questions down the line around causation and liability, insurers and their loss adjusting partners will request that forensic capture of evidence is undertaken.

Yet,  the robustness of an investigation  often remains  untested until years down the line if and when a loss makes its way to court. At this stage, evidence collection, due process and chain of custody will all come under the spotlight. Even in a simple fire claim, cases can fall over in court if they were not investigated properly.

So how big an issue is this?

A case may ultimately rise or fall on the reliability and admissibility of the forensic evidence. While court represents the ultimate test of the evidence, the majority of disputes will settle in mediation. Without proper evidence collection and consideration, there are more issues in dispute and all parties are in a weaker position from which to negotiate settlement. It is more likely that settlement will be unfavourable or will need to be resolved in court.

What are the key considerations when it comes to undertaking a forensic investigation within the context of an insurance loss?

The key consideration for the forensic investigator is to faithfully bring the scene to the court. In this regard, the approach to evidence collection must be systematic, thorough, and complete. While the primary instruction of the insurer is typically to determine the cause of the loss for the purpose of indemnity, the forensic investigator is to identify all the likely issues that could be raised in a legal dispute, and actively seek to resolve these through evidence identification and collection at the scene.

This requires a working knowledge of insurance policies, exclusions, conditions or endorsements that may apply, as well as any factors that may have contributed to the loss and  extent of damage, all of which ultimately may impact indemnity, recovery, as well as apportionment of blame in a legal dispute.

Consider a commercial kitchen fire caused by a flare up while cooking that spread through the duct and into the building, impacting on multiple tenancies. Once the cause is established, a forensic investigation should capture the fire suppression equipment, maintenance records, evidence as to whether the duct was cleaned effectively, whether the design of the duct was compliant, if modifications the fit out of the building have led to subsequent non-compliance, and evidence of adequate fire separation between tenancies.

Where do cases tend to fall down?

Most cases fall down due to the introduction of doubt that comes from incomplete evidence capture.

Poor evidence capture is often a by-product of expectation or confirmation bias, a phenomenon where an investigator unconsciously fits the interpretation of the evidence into their pre-conceived expectations, allowing it to influence investigative decisions.

Without robust examination methodology to systematically capture the scene, it is often the case that the introduction of bias leads to the collection of evidence which supports the preferred opinion, and contradictory evidence is either not looked for, dismissed, or explained away, leaving holes in the evidence capture.

A forensic investigation should be ‘evidence-led’, meaning it should have an emphasis on the objective presentation of all evidence from which conclusions are then drawn. Where evidence capture is poor, the opposite is usually seen, with explanations for how the cause can explain the evidence, conclusions presented followed by the features that support it, and opinion that is not linked to specific observations. Such evidence may present as extremely convincing to the lay person, until another expert reviews the evidence and exposes the holes.

How can claims professionals ensure cracks don’t appear in their case?

International standards for forensic sciences state that “scene examination is the first step of the forensic science processes, and the treatment of an incident scene predetermines the quality and quantity of information available for the investigation and ultimately the information available as evidence in court.” Ensuring that a comprehensive scene examination by a forensic expert is undertaken at the outset will lead to the best outcomes. In this regard, the principle of ‘go early’ and ‘go hard’ should be remembered.

Objective review of observations and opinions throughout the investigation provides protection against unconscious bias and identifies any weaknesses in the evidence that  can easily be addressed. If the first challenge occurs years down the line when questions are raised by another party, the original scene is often long since gone, and these question remain unanswered. A robust peer review program will give greater certainty that the opinion will stand up to scrutiny.

Peter Jeffrey, Principal Consultant, Halliwell

Halliwell offers comprehensive forensic technical investigation and loss consulting services across the globe, including engineering, forensic investigation and construction consulting. Wholly-owned by global claims services provider McLarens, Halliwell operates as distinct legal entity with its own operating system, business model, and governance, offering independent but complementary services to the insurance and related markets.

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