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Lies, Damned Lies and Statistics

  • The cost of UK package holidays is soaring as a result of fake holiday illness claims;
  • The surge in fake food poisoning cases could lead to British holidaymakers being banned from all inclusive resorts;
  • Since 2013, holiday illness claims pursued through UK law firms have increased by 500% with tens of thousands of claims being made;
  • Britons used to have the “weakest necks” in Europe and, until recently, fake whiplash claims were costing the UK insurance industry around £1bn a year, increasing the price of policies for customers. As the UK government has started driving out fake whiplash claims, Britons now have the “weakest stomachs” in Europe.

The above are just a few of the statements being made by the Association of British Travel Agents (ABTA), Tour Operators, many Defendant law firms in England and even members of the UK government. And the media are lapping it all up; from headline-grabbing articles in the Daily Mail to more detailed reports in publications such as the Guardian and the Independent.

English personal injury claims have often been regarded, and widely misreported, as the most expensive claims in Europe.  Whiplash claims cost thousands in damages and then the ambulance chasing lawyers add their legal bill to triple the insurer’s overall outlay, is often the cry from the Defendant market.  There must be empirical evidence to back up these strong assertions…?  But whenever the Association of British Insurers is asked to provide hard evidence there is a deafening silence.  Indeed, Professor Oliphant (Professor of tort law at Bristol University, and former Director of the Institute for European Tort Law in Vienna) has confirmed that the evidence to support the claim that the UK is the whiplash capital of the world is “very flimsy”.  He said “such evidence as there is has been misleadingly and tendentiously presented by participants in the public debate about the alleged ‘compensation culture’. Actually, the same evidence makes clear that, by most measures, the UK is not the whiplash capital of the world or even of Europe.”

Flawed studies and unreliable data make for interesting bedfellows and sensationalist journalism. However, the data actually shows that Italy had almost 50% more whiplash claims than the UK (in the period surveyed) and paid out more than twice as much in compensation.  Professor Oliphant also confirmed: “The average cost of a whiplash claim in the UK was lower too – not just than in Italy but in more than half of the other countries for which data were supplied. On average, whiplash claims in Switzerland cost ten times as much as in the UK; in the Netherlands, almost six times as much; in Norway, more than twice as much”.  Indeed, the data clearly shows that the overall cost of bodily injury claims in France, Germany, Italy and Spain was higher than in the UK.

But what of the current furore around holiday illness claims?  Surely the strong messages being shouted from ABTA’s rooftops are backed up with robust evidence from reliable sources? The statement: since 2013, holiday illness claims pursued by UK law firms have increased by 500% with tens of thousands of claims being made.

ABTA’s senior solicitor was recently challenged about the credibility of this allegation at a personal injury conference and she confirmed that the data came from only “a proportion” of ABTA members.  ABTA had asked all of its members for their data and the “500% increase” figure was only in relation to the members who replied and related to the period 2013 to 2016.  ABTA also confirmed that tour operators were not set up to monitor fraudulent claims, casting further doubt on the reality of the alleged holiday illness epidemic.

That’s not to say that there hasn’t been some increase in holiday illness claims as more Claims Management Companies and law firms in the UK have spotted a business opportunity in this niche area.  But a careful balance needs to be struck, and accurately reported, as to the increase in genuine claims and those claims which may be dishonest and fraudulent.

The Solicitors Regulatory Authority recently issued a warning notice, warning law firms that they are not doing enough to vet “false or dubious” holiday illness claims and that some companies are involved in unethical practices, including encouraging clients to delete evidence.  Such a notice is welcome news and sends a strong message to the new entrants to the market who may not have stringent vetting procedures in place.  And the reality is that any case is as strong as the evidence in support of it; but the failure to report an illness immediately to the hotel or a doctor does not automatically mean that a claim is fraudulent.

Some Defendant firms are lauding the Judgment in the recent Court of Appeal case of Wood v TUI Travel plc t/a First Choice ([2017] EWCA Civ 11) as a great victory in the defence of holiday illness cases.  However, it should be remembered that the Claimants were successful in this case and the Court of Appeal simply clarified the threshold that needs to be met to establish causation in illness cases.

A reality check is required across the travel litigation industry to properly understand the extent of any issue regarding holiday illness claims and to eradicate the small number of fraudulent claims.  A lack of reliable data as to the extent of any problem, and reliance on that unreliable data, significantly misinforms the public debate.  We are supposed to live in a fair and democratic society and access to justice is the cornerstone of any such society.  However, there is a very real risk that any reforms in this sector, driven by unreliable data and pressure from large corporates, will significantly restrict access to justice, deterring genuine claims where some people suffer life changing symptoms.

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