Travel industry sickness scheme – good in theory, bad in practice

Sharpe: Many claimants will easily be put off by this scheme

Posted by Simon Sharpe, a law costs draftsman at Litigation Futures Associate Just Costs

The travel industry is urging holidaymakers with sickness claims to use its own settlement scheme rather the instruct lawyers.

The Association of British Travel Agents (ABTA) has unveiled a new and independent alternative dispute resolution scheme for personal injury claims worth up to £10,000.

Whilst I support ABTA’s attempts to seek a more streamlined remedy for sickness claims, I can’t help but think that the lack of involvement of solicitors would result in under-settlement. Even with the existence of the ABTA scheme, defendant insurers will still likely raise issues with regard to breach of duty or causation, and these will be no less difficult to prove than in litigation.

In the recent case of Wood v TUI, claimants were given given a firm reminder that they still bear the burden of proof, even if the contractual term is a strict one, and cases will continue to be fought – and won or lost – on the question of medical causation, with experts of different disciplines assuming even greater importance than before.

The absence of professionals to address these issues will result in a higher rate of failure of potential claims that would most likely have been capable of settlement had they been more robustly pursued.

Many claimants will easily be put off by this scheme. If they are told by a seemingly impartial body that their claim is doomed to failure, then they will drop it.

Furthermore, I have doubts as to the ‘impartiality’ of any parties involved. This scheme is being advocated by ABTA and therefore this leads me to suspect that there will inevitably be some bias.

Of course, if claimants continue to instruct solicitors to pursue the claims for them, then they can be confident that their interests will be at the forefront of the solicitors’ minds when their claims are being brought.

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