Sands Through The Hourglass: Fatal Accidents, PDOs And Limitation

• Published date: 19 August 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury
• Law Firm: Gatehouse Chambers
• Author: Ms Charlotte Wilk

In Power v Bernard Hastie & Company Ltd & Ors [2022] EWHC 1927 (QB), the High Court has clarified that a beneficiary's right to apply for further damages under a PDO passes, on death, to their estate, and may be advanced by their executor.

The background facts

Mr Hammacott (Deceased) was born in 1940. He worked for each of the Defendants during periods between 1956 and 1977. He claimed that he was exposed to asbestos and asbestos dust during the course of his employment. He went on to develop asymptomatic pleural plaques and early asbestosis. He issued proceedings against the Defendants in 1991. Liability was admitted by the Defendants. Mr Hammacott sought an award of provisional damages order ("PDO") under Order 37 Rule 10 of the Rules of the Supreme Court ("RSC"). The application was heard by Kay J on 19 October 1993. Kay J made an order that the Defendants pay damages of '5,000 with interest of '233 on the assumption that the Mr Hammacott would not (as a result of the acts or omissions giving rise to his claim) develop certain identified conditions. Those conditions included a serious deterioration of his asbestosis or asbestos related benign pleural effusion or asbestos related plural thickening. The documents identified in the schedule to the order included an agreed statement of facts. That statement included the following:

"3) It is agreed between the parties that the Plaintiff will be at liberty to apply for further damages pursuant to Order 37 Rule 10 of the Supreme Court in the event of him developing [the conditions specified in the order]

4) It is also agreed between the parties that the Plaintiff can apply for further damages at any time during his life."

Mr Hammacott sadly passed away on 3 October 2017. Probate was granted on 7 June 2018. The applicant in the present action, Mr Power, was Mr Hammacott (Deceased's) nephew and the executor of his estate. He applied to be substituted as the claimant. HHJ Harrison made an order transferring the claim to the RCJ Asbestos List. At the court's request, Mr Power made a further application to be substituted as the claimant, in his capacity as the executor of the estate.

The Application

The application was heard by Mr Justice Johnson. In order to determine whether an order for substitution should be made, the following issues arose:

1. Did the statutory framework limit the right to claim further damages under a PDO to the claimant?
2. If not, did the order in this case limit that right to the claimant?
3. ...