Speaking at Abta’s Travel Law Seminar today, David Scott, partner, Horwich Farrelly, warned that travel companies should expect and prepare for “Covid claims” in the future, similar to the deluge the industry saw around sickness claims.
“There are plenty of ways we can defend these claims as we’ve done with others,” he reassured delegates.
“CMCs (claims management companies) are jumping on the bandwagon,” he said. “You’ll remember holiday sickness and gastric claims that were brought in their tens of thousands. That’s what the CMCs will be looking at at the moment.
“What they want is an easy way of making money. And they’re already starting to advertise for these claims.”
Scott said there were around 100 companies already registered on Companies House predominantly aimed at bringing Covid claims.
“It’s quite an alarming sign that already in the very early days so many companies are being formed with that intention,” he said.
“I’m hoping we’ve learned a lesson [with false sickness claims] in order to be prepared for these claims before they do eventually come.
“And what I’m talking about today aren’t just claims from guests and your customers, but also employees.
“It’s quite an easy target for these claims management companies now.”
He continued: “Claims are coming for anything from saying they’ve contracted coronavirus through whatever means to slipping on hand sanitizer.
“It’s really important that while we may not be seeing them [claims] at the moment we take this message very seriously.”
Hurdles
“The first job that the claimant’s got and that the judge will consider is whether the claimant can actually prove they contracted the virus, and that’s going to be difficult.
“There are going to be loads of different scenarios, whether you’re on a cruise ship, in a hotel, and incubation periods will make this even more difficult as well, and certainly with tests being in short supply, that will make it even more difficult for claimants to actually prove they contracted the illness.”
Scott said during the holiday sickness claims period social media evidence played a big part in analysing whether these claims were genuine or not.
“There was a 50% spike in Facebook posts in the first month of lockdown, and Instagram as well… So it’s going to be a really useful source of information to see.
“So it’s preventative steps that you can take to limit the amount of claims that could be brought against you.
“With employees, it’s really important to keep in constant contact with them as well and have ways that they can report and document issues clearly. If they’ve not made any mention whatsoever of symptoms for quite a long period of time, and certainly during the time where they say they were ill - we can use that later on. Documentation of things will be imperative.”
If the claimant can get over that quite big hurdle of proving that they contracted coronavirus, the judge will consider whether it is a breach of duty and negligence, and it’s on the claimant to prove that.
“This will come down to us having sufficient documentation to prove that you did enough, whether that’s proving that you carried out and documented the risk assessments to start with. Make sure you audit them to ensure it’s done properly.”
“The advice is changing constantly (such as on working from home), but your risk assessments must change with that. The risk assessment that you carried out at the start of the lockdown doesn’t apply.
"It’s important that you can show that you’re reacting to the government guidance on it.”
He added: “If you do identify a risk you can’t just go with the cheapest option to solve it… you can’t have a significant risk and try and overcome it with people wearing face masks. If you can’t eliminate a risk then you control it through substituting materials or processes with less hazardous ones, and then through any engineering means, but then it’s down to things like PPE.
What next?
“If the claimant could prove that you did something wrong, it doesn’t mean they’re going to succeed in their claim,” reassured Scott.
“So for example, did stopping in the affected port make a difference? Did those inadequate hygiene systems that the claimant alleges actually cause their illness? And again, that’s going to be a big battleground, probably one of the biggest in these claims.”
“It’s really important that we look at causation as well, and that’s tackled in a very similar way whether the claimant could prove that they were actually ill, and again, social media proves invaluable.
“When the claimant brings a claim, they will be examined by a medical expert. A lot of these reports are based entirely on what the claimant is telling the medical experts, and these are quite subjective symptoms. What we try and do is to find holes in that and present evidence to this court to show that that simply isn’t true.”
What do you do if a claim is brought against you?
“This is something that’s going to happen,” said Scott.
“The first thing is making sure that you you’ve got your house in order. So if a claim is brought against you make sure that you’re not only carrying out those risk assessments, you’re documenting, you’re saving them carefully somewhere so that we can get those later on. You’re constantly updating them.
“You’ve got that rigorous process, you’re auditing it and that’s all been documented clearly as well.
“Speak to your lawyers… they’re there to help and guide you through this process.
“It’s a perfect storm, really, in terms of that claimants are in a position where some of them have financial needs now that they didn’t have before.”
Scott added: “You need to react fast. We’ve seen with any claims company that we come across, if you respond to them quickly and with a robust response, it tends to go away.
“And so that’s what I’d really encourage you to do. If you do receive that claim or you’ve got warning signs that claims are going to come in, whether it’s from new customers or whether it’s from employees, contact your lawyers and they will talk you through what you need to do to respond to that claim.”
Cause for optimism
“It’s not all doom and gloom,” said Scott.
“I think we can be fairly optimistic and balance it because you do have those hurdles the claimant needs to prove: that they got ill; that you did something wrong; that you’re in breach of that duty.
“And again, we can document those processes to show that we’ve done whatever we possibly could.”
