To us, as After The Event Insurance providers, It has only been a matter of time before an insurer sought to have a deafness claim thrown out on the grounds of ‘fundamental dishonesty’ and now that has happened.
A claim for hearing loss was made against Diamanttek, a diamond drilling company. The Claimant alleged that they did not enforce the use of PPE before 2013, over a 10 year period of employment.
The Claimant also alleged that no training had been provided about the correct use of hearing protection and that warnings were not given about the dangers of noise exposure.
These are often routine allegations made by Claimant’s in such cases, which are often refuted by way of witness evidence and / or the documents.
The defendant had maintained that the Claimant was supplied with PPE throughout his employment and denied liability.
At the first hearing DDJ Kilbane rejected the claimant’s evidence and dismissed the claim but was not willing to rule the claim was fundamentally dishonest, allowing QOCS to remain in place.
However, the Defendant appealed that decision and on the 8th February Judge Gregory, sitting in Coventry found the claim to have been fundamentally dishonest and granted Allianz permission to recover its costs from the Claimant.
Allianz believe this is a first for a disease claim.
But, will insurers now adopt the same stance when dealing with any employers liability claims where the dispute relates to one of provision of PPE and training in compliance with the various regulations that may apply?
The principles would essentially be the same would they not? Or is this part of the insurance industries concerted attack on claims for Noise Induced Hearing Loss?
As an After the Event Insurance provider, any claim which is found to be fundamentally dishonest will lose all policy cover. Defendant’s have always known that so have in the past been reluctant to strongly plead fraud, even though it might be strongly implied by their evidence. If successful with such arguments, any ATE Insurance provider will withdrawn cover and the Defendant will not be able to recover their costs under such a policy.
So, to plead fraud / fundamental dishonesty, or wait until the evidence is heard and then raise the issue?