Sands Through the Hourglass: Fatal Accidents, PDOs and Limitation

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. If not, had the right to claim further damages expired by effluxion of time?
4. If so, did the scheme permit a retrospective extension of time?
5. If a claim for further damages could in principle now be made by someone other than Mr Hammacott, had a relevant cause of action now passed to the applicant?
6. If so, should an order for substitution be made?
7. If so, could the applicant (who would then be the claimant) seek to amend the proceedings to include (as well as the application for further damages under the PDO) a claim under the Fatal Accidents Act 1976.

Held

• The statutory framework permitted an application for further damages under a PDO to be made by the injured person. The law did not prevent the application being made by anybody else who had validly acquired that right.
• The statutory framework did not prevent the right to claim further damages being transferred to the injured person’s estate. The framework did not explicitly permit a court to limit the right to claim further damages, and there was no indication that the order of Kay J was intended to introduce such a limit. If the intention had been to limit the right to make the application to the claimant personally, then different words would have been used in both the order and the statement of facts.
• Rejecting the defendants’ contention that the statement of agreed facts was an interpretive aid to the order and should result in the order being interpreted as imposing a time limit – namely that the application must be made during the claimant’s lifetime – the order expressly stated that there was no time limit for the making of the application. The order, rather than the statement of facts, controlled the right to claim damages.
• The order permitted an application for further damages to be made without time limit therefore there was no need to apply to extend the time period within which an application might be made.
• It was common ground that the only way in which the applicant might have acquired the right to pursue an application for further damages was by operation of section 1 of the Law Reform (Miscellaneous Provisions) Act 1934. Once judgment was given for provisional damages, Mr Hammacott (Deceased) had a continuing residual right to seek further damages in accordance with the PDO and rules of court. That right existed where the conditions set out in the order of Kay J were satisfied, which itself amounted to a continuing cause of action. This was a right that was vested in Mr Hammacott which therefore transferred to the applicant by operation of section 1 of the 1934 Act. The relevant cause of action (the right to claim further damages under the PDO) passed to the applicant.
• The right to claim further damages was not subject to a limitation under the Limitation Act 1980 or any other enactment. The time limit within which the application had to be brought was prescribed by the PDO. Having found that there were remaining matters in dispute in the proceedings, and that it was necessary for the applicant to be substituted in order to resolve those areas of dispute, there was no residual reason not to substitute the applicant as the claimant.
• It was not necessary to rule on the question as to whether it would be appropriate to permit an amendment to the existing proceedings so as to enable a claim to be advanced under the 1976 Act.

Significance

This judgment provides much-needed clarity on a beneficiary’s rights under a PDO, which pass upon death to their estate. The case also includes insightful purposive statutory analysis throughout, most helpfully at paragraph [51]: “If Parliament had intended to exclude the right of an estate to bring a claim for further damages then the 1934 Act would have been amended accordingly, just as it excludes claims in defamation, or claims for bereavement damages or exemplary damages.”

Article by Charlotte Wilk.