Power v Bernard Hastie & Co Ltd & ors [2022] WTLR 1459

Analysis

The deceased had issued proceedings in 1991 against the defendants for personal injury arising from exposure to asbestos. Liability was admitted and in October 1993 the High Court made an order for damages (accompanied by a statement of agreed facts), which included a provisional damages order (PDO) under s32A Senior Courts Act 1981 in the following terms:

‘The Plaintiff do have leave to apply (without time limit) for further damages pursuant to Order 37 Rule 10 if he does develop the aforesaid conditions or diseases or any of them.’

(Ord.37, r.10 RSC has since been replaced by CPR 41.1(2)(c).)

The deceased died in October 2017, and was alleged to have died from asbestosis or related conditions. His personal representative applied for an order substituting him for the deceased in the proceedings, in order to pursue an award of further damages under the PDO, and intimated an application to add a claim under the Fatal Accidents Act 1976 by amendment.

The defendants asserted that the right to pursue further damages did not survive the death of the original plaintiff.

The issues to be determined were:

1. (1) Does the statutory framework limit the right to claim further damages under a PDO to the claimant?
2. (2) If not, did the order in this case limit that right to the claimant?
3. (3) If not, has the right to claim further damages expired by effluxion of time?
4. (4) If so, does the scheme permit a retrospective extension of time?
5. (5) If a claim for further damages could in principle now be made by someone other than Mr Hammacott, has a relevant cause of action now passed to the applicant?
6. (6) If so, should an order for substitution be made?
7. (7) If so, can the applicant (who will 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 1976 Act?

Held:

1. (1) The statutory framework of s32A does not preclude an application for further damages being made by a third party who has validly acquired the right to make it. If the deceased had died before the provisional damages had been paid, or before an application for further damages had been determined, their estate could have continued in either case to enforce or pursue the award. The reference to ‘the injured person’ in s32A does not prevent damages being awarded to the claimant’s estate, and s3(4) Damages Act 1997 expressly contemplates such an order.
2. (2) The order did not limit the right identified above. Nothing in the language of the order introduces such a limit, and the contemporaneous statement of agreed facts could not override the express language of the order.
3. (3) The right to claim damages had, therefore, not expired by effluxion of time. Although CPR 41.2(2)(b) requires any PDO to specify the period within which an application may be made, this did not preclude an order without a time limit.
4. (4) (Obiter) Were it necessary, an application to extend the time limit for making an application under a PDO could be made after the end of the prescribed time limit. The order was now governed by CPR 3.1(2)(a), which permits extensions of time after the expiry of the relevant period – Blythe v Ministry of Defence [2013] followed.
5. (5) A relevant cause of action did pass to the applicant personal representative. Although ordinarily a cause of action merged into the judgment, the making of a PDO gave the claimant a continuing residual right to seek further damages where the conditions in the order were satisfied. That right vested in the personal representative – Guilfoyle v North Middlesex University Hospitals NHS Trust [2018] approved.
6. (6) The applicant would be substituted as claimant. The above cause of action was not subject to any period of limitation under the Limitation Act 1980 and therefore CPR 19.5 did not apply. Alternatively, substitution was necessary as required by CPR 19.5(2) and (3).
7. (7) The proposed claim under the Fatal Accidents Act 1976 appeared to be barred by s12 Limitation Act 1980, more than three years having expired since the deceased’s death. Unless the applicant could show by reference to his state of knowledge that it was not so barred, it would be necessary for him to issue fresh proceedings, which could be case-managed with the application under the PDO.

JUDGMENT JOHNSON J: [1] This application raises the question whether the estate of a deceased claimant can take advantage of that claimant’s right, under a provisional damages order (PDO), to ask the court to award further damages on the ground that he developed a condition or disease that was specified in the order. [2] The …

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