A ’cause of action’ can be transferred from a person after death

'Cause of action' case

In Power v Bernard Hastie & Company Ltd & Ors, a 2022 case, the court allowed the executor to use the deceased claimant’s right based on an earlier court order to request further damages in respect of a personal injury case.

Background

The claimant, Mr Hammacott, issued proceedings against his employer in 1991, after developing asymptomatic pleural plaques and early asbestosis as a result of exposure to asbestos in the course of his employment. The court made a Provision Damages Order, which allowed the Claimant to apply for further damages if he developed one of a number of conditions specified in the Order.

The Claimant died in October 2017 from asbestosis and/or a related condition named in the Order. A Grant of Probate was made to the Claimant’s nephew, Mr Power, who made an application to the court to replace his late uncle as the claimant in proceedings for further damages.

The claim

Mr Power’s case was that his uncle had a right to apply for further damages under the Order and that this right had passed to his estate on his death. He relied on previous case law, in which the court concluded that a right to seek further damages under an Order did transfer to the deceased’s estate on death and that there was no time limit on such a claim.

The defence

It was the defendant’s case that the wording of the relevant legislation allows the court to award ‘the injured person’ further damages and that payments can be made to the ‘claimant’. It was suggested that this wording does not permit the executor of an estate to make a claim on behalf of the deceased.

The ’cause of action’ decision

The court ordered that Mr Power could substitute his deceased uncle and bring a claim for further damages on behalf of his uncle’s estate.

The court determined that had the deceased started the proceedings before his death, his executor would have had the right to continue on his behalf. As such, it follows that proceedings can also be started by the executor in his place.

The court also considered the wording of the Order itself and decided there was no intention to exclude anyone other than the deceased from making an application for further damages in the future.

Procedural steps

Whilst the facts of this case concern a personal injury claim, it has wider repercussions. It provides further confirmation that ’causes of action’ survive on death and the right to bring a claim passes to the executor of the estate of the original claimant.

Finally, there are practical considerations for a Personal Representative wishing to substitute a deceased claimant. They must have first obtained a Grant of Probate (or a Grant of Letters of Administration) to have the authority to do so. Once the Grant has been obtained, they will need to make an application to the court for permission to replace the original claimant as Mr Power did in this case. If you think that you may wish to pursue a case of this type, then you should contact the Succession & Tax team in the first instance and we will discuss the circumstances with you and assist you as necessary.