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Thursday, 12 February 2015

Concerning Deafness, insurers and other hopeless cases

I have a friday afternoon ritual. At about 3.30, I meet with one my of colleagues. Over a coffee and a cake we carry out our screening of the new Occupational Deafness cases that have come in during the course of the week. This is not a Friday afternoon ‘easy job’. It is hard work.

Before we even look at them there has to be professionally prepared audiometry. If any of those tests are questionable the case is rejected. We then look at numerous other factors including the nature and dates of the exposure, the provision of hearing protection, limitation, the number of employers etc. Only the best cases survive the exercise. We reject about 70% of the cases that we screen.

I spoke at a conference in Liverpool last year on this very subject. From what I could tell, most experienced practitioners adopt a similar approach.

It seems, however, that the insurance industry would have us believe otherwise. According to a press release this week, Aviva allege that lawyers are actually interested in pursuing hopeless cases. They say that too many cases are submitted by ‘opportunistic personal injury lawyers’. They go on to make the remarkable assertion that lawyers need to be deterred from submitting – ‘weak cases they know are likely to fail’. They call for a clampdown on ‘spurious’ claims.

This is of course complete nonsense. These cases have to be pursued on a no win no fee basis. There is no other way that a victim can secure justice. For obvious reasons, lawyers will only pursue cases with at least a reasonable chance of success. Why on earth would we have any interest in running case that we ‘know are likely to fail?’ Or to put it more bluntly - why would we ever want to run cases for which we do not have a cat in hell’s chance of getting paid? This is why cases are so carefully screened. To do otherwise would be commercial suicide.

Aviva and their insurance colleagues are not trying to clamp down on ‘spurious’ claims. They are trying to get rid of all claims. They want to persuade their political allies to introduce procedures that will make it virtually impossible to pursue most cases. They did this very effectively in motor accident cases and have now moved on to another agenda. And they will go to great lengths to deter claimants.

EAD settled one claim last year after a long and very expensive battle with insurers. It was a genuine claim but was of modest value. It is fair to say that they threw the kitchen sink at this poor claimant. It became a war of attrition. Any point that could be taken was taken. The case came within an inch of trial when it finally settled for just under £4k. Two years earlier, we had put forward a proposal to settle at £4.5k. The legal costs were
eventually agreed at £69k. They were so high because the claimant had been made to fight to the end. The insurers did not even try to argue that the costs were disproportionate.

They did all of this in the hope that the claimant would give up. And presumably to send a message out that you ‘don’t mess with us’! Try telling this client that insurers acknowledge that genuine claimants deserve compensation.

This is going to be the next battle ground and it will not be long before the Minister of Justice starts to come out with similar rhetoric.

The only hope is that the election will see a different government and one which sees the value and not simply the price of justice.

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