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The Executor of an Estate Can Apply for Provisional Damages: Power v Hastie & Co Ltd [2022] EWHC 1927 (QB) - Anisa Kassamali, Temple Garden Chambers

17/08/22. Provisional damages can be awarded where a claimant’s prognosis is uncertain. By way of a provisional damages order (‘PDO’), a claimant is effectively given the right to return to court to apply for further damages if he or she suffers serious deterioration in the future as a result of the original injury.

The applicant in Power v Hastie & Co Ltd [2022] EWHC 1927 (QB) (22 July 2022)[1] asked the High Court to consider whether that right survives a claimant’s death. Put differently, can the estate of a deceased’s claimant take advantage of that claimant’s right to ask the court to award further damages on the ground that the claimant developed a condition or disease specified in the PDO.


Mr Hammacott (‘the Deceased’) was employed by the Defendants for various periods between 1956 and 1977. In 1991, he claimed that the Defendants had been responsible for his exposure to asbestos. He was awarded damages of £5,000 plus interest on the assumption that he would not develop certain identified conditions, including a serious deterioration of his asbestosis or asbestos related benign pleural effusion or asbestos related pleural thickening.

The Deceased also sought an award of provisional damages under Order 37 Rule 10 of the Rules of the Supreme Court. Kay J heard that application and relevantly ordered 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 diseases or any of them.”

The Deceased’s nephew and executor of his estate said that the Deceased ultimately died of those identified conditions. He sought to be substituted as the claimant in an application for the according further damages.

High Court decision

Johnson J held that a beneficiary’s right to apply for further damages under a PDO...

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