POWER V BERNARD HASTIE & COMPANY LIMITED & ORS [2022] EWHC 1927

This blog was written by Ivan Bowley who appeared for the successful Claimant. He is instructed by Tom Bradley of Simpsons Solicitors.

A recent decision of the High Court considers whether the right to seek further damages under a provisional damages order passes to the injured victim’s estate on his death.

Mr Hammacott developed asbestos related pleural plaques and minor asbestosis as a result of asbestos exposure sustained during various periods of employment with the defendants. In 1991 he issued a claim for provisional damages pursuant to section 32A of the Senior Courts Act 1981. The immediate award was determined at trial in 1993 and the parties subsequently agreed a consent order (PDO) which gave Mr Hammacott the right to seek further damages if he developed any of a number of risk conditions, including deterioration of his asbestosis or pleural thickening.

The PDO provided that: “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 any of them.” Attached to the order was an agreed statement of facts which recorded that: “It is agreed between the parties that the Plaintiff can apply for further damages at any time during his life”. Many years later Mr Hammacott developed more serious asbestos disease but died in 2017 without having issued an application for further damages. It was alleged that his asbestos disease caused his death.

The executor of Mr Hammacott’s estate issued an application under CPR 19.2 to be substituted as Claimant in Mr Hammacott’s claim so that he could then pursue an application for further damages on behalf of the estate pursuant to section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934, and a claim on behalf of Mr Hammacott’s widow pursuant to section 1 of the Fatal Accidents Act 1976. The question for the court was whether the benefit of the PDO survived and passed to Mr Hammacott’s estate pursuant to section 1(1) of the 1934 Act or, as the Defendants contended, it died with him.

The Defendants opposed the application on a number of grounds. Mr Hammacott’s original cause of action had “merged” with the judgment and so no longer existed. The right to seek further damages was therefore to be determined in accordance with the PDO together with the agreed statement of facts which limited the right to seek further damages only to Mr Hammacott and only during his lifetime. The statutory scheme did not envisage anyone other than the injured victim having the right to seek further damages.

The Claimant argued that the PDO comprised part of Mr Hammacott’s original cause of action, relying on the decision of HHJ Roberts in the County Court case of Guilfoyle v North Middlesex University Hospitals NHS Trust (2018). That cause of action therefore survived for the benefit of Mr Hammacott’s estate. The Judge agreed and considered that Guilfoyle had been correctly decided.

The Judge found that the term “without time limit” in the PDO did not restrict the right to apply for further damages only to Mr Hammacott. The reference in the agreed statement of facts to the application being made in the deceased’s lifetime did not appear in the PDO itself, and, even if it had, it was only a stipulation as to time and did not prescribe who was permitted to make the application. The Judge also rejected the argument that the right to claim further damages ended with Mr Hammacott’s death. The term “without time limit” meant exactly what it said and was not restricted to Mr Hammacott’s lifespan.

It was not in dispute that the relevant procedure was contained in CPR 41 which had replaced RSC Order 37 under which the original consent order had been made. The Judge found that the statutory scheme under section 32A of the Senior Courts Act 1981 and the procedural rules for provisional damages in CPR 41 did not limit the award of further damages only to the injured victim. Nothing in the legislation and the rules prevented the injured victim’s rights passing to a third party, including the victim’s estate.

Because of the Judge’s findings on the effect of the statutory scheme, CPR 41 and the language of the PDO, it was not necessary for the Judge to go on to consider whether an application to extend time to apply for further damages was necessary. Under Order 37 Rule 8(3) any application to extend the time within which a party could seek further damages had to be made before the expiry of the existing period. However, CPR 41 contained no similar stipulation. In Blythe v Ministry of Defence [2013] All ER 326, the Master had ruled that an application by a living victim to extend time made 2 years after the initial period had expired was permissible. That decision was upheld on appeal to the single judge and subsequently by the Court of Appeal.

Having made the findings summarised above the Judge found that the requirements of CPR 19.2 had been satisfied and the Claimant could be substituted so that the claim under section 1(1) of the 1934 Act claim could proceed.

Although not central to the issue before the Court the Judge also heard submissions about the impact of limitation. He found that no new limitation period applied in respect of the estate claim. This decision is consistent with Lloyd v Humphries [2015] EWHC 525 (paras 89 – 90). The time period within which an application for further damages could be made was determined by the terms of the PDO. If he was wrong about that the Judge stated that CPR 19.5 applied. CPR 19.5 permits substitution after the expiry of a relevant limitation period, and for personal injury actions provides that the court may defer resolution of that issue to trial.

A further question concerned a proposed amendment of the original claim to join the Fatal Accidents Act claim on behalf of Mr Hammacott’s widow. Section 3 of the Damages Act 1996 expressly permits a claim by the dependants where a provisional damages order has previously been made. CPR 17.4(2) permits the addition of a new claim after limitation has expired where it arises out of the same or substantially the same facts as the existing claim. The Judge stated that it was not necessary for him to rule on the question of whether it would be appropriate to permit an amendment of the existing proceedings to add a claim under the 1976 Act but nevertheless went on to consider the point. He stated that in order to succeed it would have to be shown that Mr Hammacott’s death arose out of the original tort; those facts were no part of the proceedings that were brought by Mr Hammacott and therefore the 1976 Act claim did not arise out of substantially the same facts as the existing claim.

Commentary

The Judge rejected the Defendants’ argument that the meaning of the PDO was to be found in the agreed statement of facts. By contrast, in Green v Vickers  [2003] EWCA Civ 904, the Court of Appeal determined the meaning of a term dealing with causation in a provisional damages claim by reference to the agreed statement of facts in that case. Inevitably each case will turn on its own facts, but where the language of the order appears inconsistent with the agreed statement of facts it should be the order that prevails.

The author also respectfully suggests that the Judge was wrong about the application of CPR 17.4(2). That rule states: “The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as the claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.” In the present action the claimant is seeking further damages because of the Mr Hammacott’s more serious asbestos disease and consequent death. The 1976 Act claim on behalf of his widow arises precisely because, it is alleged, Mr Hammacott died as a result of his asbestos related injury. Both claims arise out of the same tortious exposure to asbestos dust and concern the same asbestos disease. It is difficult to see how the two claims do not arise out of the same or substantially the same facts.

The issues that arose in this case are not uncommon in asbestos litigation, but they can also arise in other provisional damages claims. They concern the interpretation of provisional damages orders made many years earlier and under a rules regime that has since been replaced by the CPR. Language that was thought to be watertight when the original order was made may now be found not to achieve the result originally intended.

Problems can easily be avoided if the language of the provisional damages order specifically provides for claims by the injured victim’s estate (and/or dependants). When required to do so the Courts have provided for this outcome. The judge in Guilfoyle ordered that any further application for damages had to be made within 12 months of the victim’s death. In Prater v British Motor Holdings Ltd [2016] Lawtel, the judge specified a period of 3 years after the date of death.

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