The England and Wales High Court has ruled that upon a claimant’s right to seek damages under a provisional damages order (PDO) passes to their estate upon their death.
This judgment was made during Power v Bernard Hastie (2022 EWHC 1927 QB). This involves an asbestosis claim from 1993, where the victim, Mr Hammacott, sought damages from his former employers.
He won £5,000 in the initial case in 1993. However, Hammacott died in 2017, and James Power, the nephew and executor of his estate claimed his death was due the asbestos exposure and sought further damages.
Power sought these damages under the previous provisional damages order, however, the employer’s defence argued the claimant could not seek further damages due to his death, and the estate could not claim further damages and executor of his estate could not claim on Hammacott’s behalf.
However, the EWHC found in Power’s favour. Johnson J found that there is nothing that prevents an injured person’s right to apply for further damages under a PDO, despite it being transferred to their estate, as part of the s.32A of the Senior Courts Act 1981.
Although, it was adjudged that Hammacott did not have a general continuing right to argue an original cause of action, and this did not automatically pass to his estate. However, he did have the right to seek further damages once an original judgment was made regarding damages.
This right was found to be passed onto the benefit of his estate when he died, as per section 1 of the Law Reform (Miscellaneous Provisions) Act 1934. Therefore, Power was allowed to claim for further damages on behalf of Hammacott’s estate.
