A sudden outbreak of holiday sickness claim

Date published

30/09/2016

Services

Sectors

The travel industry has been hit by a wave of sickness claims as the UK compensation culture continues to find new ways to grow. We set out tactics for tour operators and insurers faced with these claims and consider the way forward for the industry.

Claims management companies (CMCs) are thought to have moved from motor credit hire and payment protection insurance claims to holiday sickness claims as, in these claims, solicitors' costs can still be recovered on an hourly rate basis.

Claims farming not only increases claims frequency but also results in fraudulent claims and damages tour operators’ brand and customer relations. In addition, the outcome for holidaymakers will be increased holiday costs and, potentially, more limited holiday options. In some areas suppliers of hotel accommodation have started refusing to accept customers from the UK as they are the main ones bringing the claims.

The scale of the problem

Estimates suggest claims volumes have increased by 800% over the last 18 months. However, reports of sickness in resort, whilst on holiday, have continued at their usual, far lower, levels.

This is a new phenomenon. Key features include the following:

  • Unlike the group actions of the late 1990s and 2000s, hotels and resort staff are not receiving reports of sickness.
  • The claims are not ones which warranted seeing a GP in resort or immediately on return home.
  • Often the only evidence supporting a claim for sickness is the claimant’s own oral account, typically given over the telephone to a medical expert once a claim has been intimated.

It is feared that claims numbers have not yet peaked. The increase only really became noticeable 18 months ago and claimants have three years to bring a claim. It is also apparent that it is not only all-inclusive holidays that are being targeted, but also half-board holidays all over the world.

Court decisions have emboldened behaviours. In Antcliffe and others v Thomas Cook Tour Operations Ltd [2012] a tour operator selling an all-inclusive holiday was found strictly liable for sickness suffered by customers.

Typical claims are for short-lived sickness symptoms with no formal pathogen diagnosed, with damages being agreed at around £2,000 to £3,000 with an additional similar sum for costs on top.

Defence tactics

Tour operators and insurers initially dealt with these claims with little investigation, believing it to be more economic to settle. However, the surge in claims volumes has caused them to think again. Important issues to consider include the following:

  • Liability issues: recent cases such as Swift and others v Fred Olsen Cruise Lines [2016] show that strict liability does not apply. The test should be one of reasonable care and skill.
  • Medical evidence: in some cases medical experts are being used who have previously been discredited by the courts for simply repeating what a claimant has told them and adducing their evidence with no examination.
  • Fraud: the prospects of bringing a successful defence of fraudulent misrepresentation appear to be improving. For example, a recent investigation by the Mail on Sunday highlighted the steps being taken by some of the claims handlers in the travel claims arena.

Way forward

We are working with tour operators, insurers and the Association of British Travel Agents to share knowledge about disreputable claims. We believe that only by sharing data can the whole industry gain a handle on, and start to tackle, the problem. By taking a robust approach, and rejecting claims which lack evidence to support liability or causation, the industry can then establish which claims are genuine and settle them accordingly.

At the same time, we actively review whether claims are fraudulent, whether on the part of the CMCs (who may not actually even represent the purported claimants) or claimants themselves. This exposes repeat claimants, who see a sickness claim as a means of paying for their next holiday. On a wider scale, through data analytics, claims farming can be better understood. We can start to model and predict behaviour, allowing the industry to be better prepared.

Read other items in the Personal Injury Brief - October 2016