Provisional damages and mitigation where claimant at risk of dementia considered
The High Court has held that a right to apply for further damages under a provisional damages order passed on death to the estate and could be advanced by the executor.
The applicant was the nephew and executor of the claimant’s estate. He argued that he should be substituted as the claimant in the proceedings so he could pursue a provisional damages order. The defendants submitted that the right to pursue such an application does not survive the claimant’s death.
The claimant was exposed to asbestos during his employment with the defendants between 1956 and 1977. He developed asymptomatic pleural plaques and early asbestosis. Liability was admitted, and in 1993 an order for provisional damages was made which stated that the claimant had leave to apply for further damages in the event of a serious deterioration of his asbestosis or asbestos related benign pleural effusion or asbestos related pleural thickening. In October 2017 the claimant died.
The applicant submitted that the claimant’s original claim comprised a single cause of action and there was no time limit on an application for further damages. Alternatively, if there was a time limit then that could be extended. The applicant relied on the County Court case Guilfoyle v North Middlesex University Hospitals NHS Trust  where it was held an administrator of a deceased's estate was entitled to seek further damages under a provisional damages order (PDO) that was made in the deceased's favour.
The defendants argued that there was no cause of action to pass to the claimant’s estate on his death. The statutory scheme does not provide for, or permit, an application to be made by anyone else, or further damages to be paid to anyone else. It was submitted the decision in Guilfoyle was wrongly decided and not binding.
Mr Justice Johnson found there were seven issues to consider in deciding whether a substitution should be made.
(1) Does the statutory framework limit the right to claim further damages under a PDO to the claimant?
Section 32A(4) of the Senior Courts Act 1981 Act and CPR 41.1 provide that where a PDO is made the “injured person” is entitled to apply for further damages. However, there is nothing in the framework that prevents this right being transferred to a third party. Johnson J found that there was nothing to prevent an application for further damages from someone other than the injured person, so long as the applicant had acquired that right.
(2) If not, did the order in this case limit that right to the claimant?
The order stated that the claimant may make an application for further damages. If the intention had been to limit the right to the claimant personally then different words would have been used in both the order and statement of facts.
(3) Has the right to claim further damages expired by effluxion of time?
The order in this case provided that any application may be made without time limit. The defendants argued that the parties had agreed in the statement of facts, that the claimant could apply for further damages at any time during his life. They argued that the statement of agreed facts was an interpretative aid to the order and therefore the application must be made during the claimant’s lifetime.
Mr Justice Johnson did not agree. He concluded that the order, not the statement of facts, controls the right to claim damages. Therefore, there was no time limit imposed.
(4) If the time limit has expired, can it be extended?
If the judge was wrong in respect of (3) he found that, in any event, it was open to the court to grant an extension of time.
(5) Did a relevant cause pass to the applicant?
Justice J said that once judgment was given for provisional damages the claimant had a continuing residual right to seek further damages in accordance with the PDO and rules of court. That right transferred to the applicant in accordance with section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 (LPA).
(6) Should an order for substitution be made?
Mr Justice Johnson explained that the relevant cause of action is the right to claim further damages under the PDO which isn’t subject to a period of limitation. The time period for the application to be brought is prescribed by the PDO. In this case, there was no time limit.
(7) Can the applicant seek to amend the proceedings to include a claim under the Fatal Accidents Act 1976?
If the applicant wished to bring a claim under the FAA, he would need to show that the limitation period had not expired, otherwise it may be necessary to issue fresh proceedings. Any limitation defence could then be determined in those proceedings.
The judge concluded 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.” He therefore ordered the applicant be substituted as the claimant so he could pursue an application for further damages under the PDO.
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