Provisional Damages in Asbestos Claims – High Court Breaks Fresh Legal Ground

Those in the early stages of asbestos-related illness often receive an initial award of damages on the basis that they can seek further compensation in the event that their condition deteriorates. In a ruling which broke new legal ground, the High Court has ruled that entitlement to such provisional damages lives on even after victims have died.

The case concerned a man who was exposed to asbestos whilst working for three employers between 1956 and 1977. He developed pleural plaques and asbestosis but was asymptomatic when he launched proceedings. The employers admitted liability and, in 1993, they were ordered to pay him £5,000 in damages.

A provisional damages order (PDO) was also made at the same time, which entitled him to return to court for further compensation if he suffered specified deteriorations in his condition that resulted in him being unable to work. Following his death, his nephew, acting as executor of his estate, applied to enforce the PDO.

In resisting the application, the employers asserted that the man’s original cause of action came to an end with the award of damages in 1993 and that, thereafter, it had no independent vitality. There was thus no cause capable of passing to his estate. In any event, they contended that only he, as the injured person, enjoyed the benefit of the PDO and that an application for further damages could not be made by anyone else.

Ruling on the matter, the Court noted that, had the man been awarded provisional damages but had yet to receive the money when he died, his nephew would have been entitled to enforce payment on behalf of his estate. Had he applied for further compensation but died before the application was heard, his nephew would equally have been entitled to pursue the application as his executor.

The man’s original cause of action remained live for the purposes of enforcement of the PDO and there was no statutory bar on the benefit of the order being transferred to a third party, in this case his nephew in his capacity as executor. The nephew was substituted as claimant in the action so as to enable him to pursue a claim on behalf of the estate for further damages under the PDO.