Insurers’ Attempt to Reclassify NIHL Criticised by Judge

This article was published on: 03/19/15

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A defendant insurance company was hammered by High Court Judge, Mr Justice Phillips, after it was revealed that they attempted to reclassify a noise induced hearing loss claims (NIHL) as an injury, as opposed to a disease.

Why is this a big deal? Well the reason behind it was so that they could cut the level of success fee that they would be susceptible to pay the claimant’s solicitors due to the fact that the case was an outstanding pre-Jackson claim.

There has been a lot of rhetoric over the year’s before and after the implementation of Jackson reforms that the claimant lobby were guilty of encouraging fraud within the industry to that is indeed why the reforms were implemented, in order to try to clamp down on it.

But once again the insurers are showing their true colours and just where their motivations lie in the latest move to try to cut costs at their side.

It is no secret that the sector has already got industrial deafness claims in their sights as Jack Dalton, Head of Motor Insurance for the ABI, has already labelled them the next whiplash and insisted that they be dealt with by harsh reform.

For now though, it seems the insurance industry are taking it upon themselves to reduce the success fee recoverable from them and to define the medical status of industrial deafness, instead of leaving it to the professional bodies.

Ruling over Dalton & Ors v British Telecommunications Plc [2015] EWHC 616 (QB), Mr Justice Phillips, stated that the “defendants’ insurers’ attempt to re-open (if not renege on) the industry agreement made in 2005 does them little credit”.

In response to the appeals by the defendant side, he followed up by saying: “I have set out (examples) of NIHL being categorised as an occupational disease in medical literature, legislation, House of Lords and Supreme Court decisions, legal texts and the pre-action protocol for disease and illness claims, all of which goes to demonstrate that, consistently with the ‘industry’ agreement and the Civil Justice Council report of that agreement, NIHL may properly be categorised as a disease.”

“To seek to limit such success fees to 25% is an opportunistic attempt to avoid part of the overall bargain (in relation to NIHL) whilst taking the benefit of the remainder (for example, in relation to asbestos claims, fixed at 27.5%)”.

Scott Rees and Co Marketing Partner, David Byrne, was critical in response to the actions of the insurance company. He said: “This is exactly the sort of practice that we have come to expect from the insurance industry. For years they have banged the fraudulent claim drum and accused the personal injury claimant profession of encourage spurious claims.”

“How hypocritical then that, in the instance of a genuine NIHL claim, they should practice the very same thing to try to avoid the awarding of the correct success fee, simply to make savings to boost their own profits.”

“This is exactly the sort of thing that should raise eyebrows over the insurance industry’s motivations for further reforms within the personal industry, including NIHL claims, as well as whiplash, both of which have been referred to recently by the insurance industry as being problematic.”

“It is clear that the chief motivation for the insurance sector is solely protecting and boosting their own profits and hopefully the Government will take note of this before considering any future reforms.”