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This article is written by Nidhi Chhillar, a II year student at Vivekanand Institute of Professional Studies, GGSIPU. In the article, the author discusses death in relation to tort.

Introduction

Wide variety of claims are covered under the law of torts. The claim for compensation is usually brought by the person who has sustained the injury against the person who is responsible for such injury. What would be the case if the person to whom the injury is caused dies? Can the representatives of the deceased claim for the compensation?  

The topic can be studied under two broad heads:

  • How does the death of one of the parties affect the cause of action

For example, A has a cause of action against B, and either of the parties during the proceedings, the question that arises here is that will the cause of action survive? Thus, to say in other words, can the representatives of A sue B on behalf of A or if B dies can the representatives of B sue A?

  • Secondly, How far is causing death actionable in tort

The question here is, if A’s death is caused because of the act of X, then how his act gives right to the legal representatives of A to make X liable.

What is the effect of death on the subsisting cause of Action?

According to the English common law, no cause of action arises against the person who is dead. This rule was contained in the maxim Actio personalis moritur cum persona”, the cause of action dies with the person, thus, if any of the parties die, cause of action comes to an end.

The application of the maxim in India can be seen in the case of :

Balbir Singh Makol v. Chairman, Sir Ganga Ram Hospital 

Facts

A complaint was filed by Balbir Singh Makol against the surgeon alleging that his son died because of the blunder committed by the surgeon. While the proceedings were going on, the Surgeon died.

Held

The National Commission applied the maxim “Actio personalis moritur cum persona” and held that with the death of the surgeon the cause of action has also come to an end and therefore, the legal heirs of surgeon can not be made liable for the same.

Exception to the maxim “Actio personalis moritur cum persona”

There are two exceptions to the maxim “Actio personalis moritur cum persona”:

  1. Action under Contract: The maxim does not apply to the cases where an action is brought under the law of contract, therefore the legal representatives of the person can be made liable for the performance. However, if the contract entered into is a contract of personal service, then the legal representatives would not be liable for the performance. Thus, for example, there is a contract with A for singing on a particular event and meanwhile, A dies, then the representatives of A cannot be made liable for the performance.
  • Unjust enrichment of tortfeasor’s estate: If someone, before his death has wrongfully appropriated the property of another person then the person whose property has been appropriated does not lose his right to bring an action against the representatives of the deceased and recover the property. The rationale behind it is that, only the thing actually belonged to the deceased can be passed to his representatives.

The Action by or Against the Estate of the Deceased

The passing of Law Reform (Miscellaneous Provisions) Act, 1934 has abrogated the maxim, thus providing that the cause of action does not die with the death of the person. It means that the subsisting cause of action survives in spite of the fact that either of the parties has died.

The Law Reform (Miscellaneous Provisions) Act, 1934

  • The Act, allowed to be sued and bring an action for the claim against the estate of the deceased.
  • Section 1(1) of the Act provides that on the death of the person all causes of action subsisting against or vested in him, shall survive for the benefit of his estate.
  • Exceptions
    • Claim for Defamation
    • Claim for bereavement damages (shall be discussed later)
    • Defamation: According to Common rule, the deceased cannot be defamed. Defamation is an act or a statement that damages one’s reputation and it is considered that the dead have no reputation to be damaged.

Similarly, no cause of action arises against the deceased, as the cause of action in defamation is a personal one that does not survive death.

  • When the deceased estate brings an action against the wrongdoer, it must prove that the deceased had the “cause of action” which was “vested in him” at the time of death.
  • Action against the Estate of the deceased: The time is a crucial factor when the deceased estate is sued by the claimant.

Section 4 of the act provides that, if the damage has been caused because of the act or omission of a person and the person dies before or at the same time when the damage was caused, then an action is deemed to have been subsisted before his or her death.

For Example, If in the case of Donoghue v. Stevenson, the manufacturer of ginger wine dies before the claimant had consumed the beer and suffered from a serious illness, then the claimant action is preserved under Section 4 of the Act and therefore, the estate of the deceased can be sued.

  • What can the Estate of Deceased Claim

Section 1 (2)(c) of the act provides that the estate of the deceased can claim the funeral expenses in addition to all the damages which the deceased could have claimed upto the date of his death. Provided that the funeral expenses should be reasonable.

The Estate may recover for any physical injury and pain, suffering and loss of amenity. Provided that such damages must be sustained by the deceased prior to his death. If the damages are sustained after the death then the estate cannot claim for such damages.

Case law

Hicks v. Chief Constable of South Yorkshire

Facts

The estate of two sisters brought an action against the defendants for the fear and terror which the sisters would have suffered prior to death.

Held

The House of Lords held that fear by itself, of whatever degree, is a normal human emotion for which no damages can be awarded.

The Administration of Justice Act, 1982 has curtailed the heads of the damages that can be awarded.

Section 1(2) of The Law Reforms (Miscellaneous Provisions) Act, 1934, has been amended by Section 4 (2) of the Act.

  1. No damages to be awarded for the loss of Income in respect of any period after death.
  2. Excludes exemplary damages

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Shortening of the expectation of life

One of the consequences which may attend physical injury is a shortening of expectation of life, so that the injured person can not in any possibility survive as long as he would otherwise have done.

If the expectation of life has been reduced because of the injuries caused by the defendant then the person is entitled for the compensation.

The compensation under this head for the first time was given in the case:

Flint v. Lovell

Facts: the Plaintiff aged 69 years who was otherwise very active was injured in an accident caused because of the negligence of the defendant.

Held: The appellant court granted compensation to the plaintiff.

  • Damages in Case of Shortening of Expectation of Life

In Benham v. Gambling, the House of Lords laid down certain principles to determine the quantum of damages, in situations where a person’s normal life span of life is shortened because of the wrong committed by the Plaintiff.

     What is the test to determine Compensation

  1. The test to determine compensation depends upon the prospect of a predominantly happy life rather than the length of the time of life of which the person has been deprived.
  2. The test of happiness of life is objective rather than subjective
  3. Very moderate damages are awarded under this head
  4. The economic and social position of the deceased is not taken into account while accessing the damages because the happiness of life does not necessarily depend on such things.

How far is causing death actionable in Tort?

Position in England

According to the common rule, the cause of action  for smaller injuries lies in the civil law but death of a person can not be termed as an injury and thus does not come under the purview of Civil law.

Presently in England, when it is proved that the death has been caused because of the act of the defendant’s tort, the plaintiff is entitled for special damages. The modern position is thus, that the tort actions have a life of their own and do not die with the death of either of the parties. However, the old rule is still followed in the cases which involves the disputes of very “personal” nature, for example, Defamation.

Rule in Baker v. Bolton

The rule, causing the death of a person is not a tort was laid down in the case of Baker v. Bolton, and is therefore known as the rule in Baker v. Boulton.

In this case the plaintiff was held entitled for injury to himself and also the loss of wife’s society and distress, from the date of the accident till her death but not for any loss caused after death.

Exception to the rule in Baker v. Bolton

However, there are certain exceptions available to the rule in Baker v. Bolton which are discussed below:

  • Death due to breach of contract:  Although, causing the death of the person is not actionable under the law of tort but if the death is the result of the breach of contract then the fact of death can be taken into account to determine the damages payable on the breach of Contract.

 Jackson v. Watson

Facts

Plaintiff purchased a tin of Salmon from the defendants . Wife of the plaintiff died because of the consumption of salmon supplied by the defendants. It was found that the contents of the Salmon were injurious to health.

Held

It was held by the court that there was a breach of contract as the defendant has failed to supply the goods safe for consumption and hence, the plaintiff was held entitled to claim compensation for the loss of service of the wife due to her death.

  • Compensation for death under various statutes: In England there are various statutes which contains the provisions for compensation on the death of a person. Some of them are:
  1. The Coal-Mining (Subsidence) Act, 1957
  2. The Carriage by Air Act, 1961
  3. The Carriage of Passengers by Road Act, 1974
  4. The Merchant Shipping Act, 1979
  5. The Fatal Accidents Act, 1976

However, these acts except the fatal accidents act, 1976 are not related to the tort and are thus not discussed here.

Dependent’s Action

  • The Fatal Accidents Act, 1976:

The fatal accidents act, 1846 which is also known as Lord Campbell’s Act, was passed in response to the increasing number of fatalities on railways leaving the family members of the deceased unsupported. The governing statute is now the fatal accidents act, 1976.

Dependency Claims

  • When can the dependents bring an action for the Claim

Section 2(2) of the Act provides that if there are no executors or administrators of the deceased or no action is brought by them with the six months of the death then the dependents of the deceased are entitled to bring an action.

  • Dependent’s entitled to “specific damages”:   Wrongful death of a person enables the dependents of the deceased to recover specific damage for the deprivation of financial income or financially measurable support caused because of the death of a person.
  • Dependent’s action is both derivative from and independent of, the deceased’s claim:  It is derivative because the dependent claim depends on the validity of any claim which would have been to the deceased. Thus, if the claim was barred for the deceased then it will be barred for the dependent as well.

It is Independent because the dependents claim is for damages sustained by them personally.

  • The Deceased must have been able to claim against the defendant:  Section 1(1) of the 1976 act provides that an action will succeed only if the wrongful act, default which caused death, is such that if the person had not died, would have been entitled to bring an action and claim damages from the defendant thereof.

Thus, there are three essentials to bring a successful action against the defendant:

  1. The defendant must have committed a tort
  2. The tort of the defendant resulted in the death of a person
  3. The deceased would have been entitled to bring an action against the defendant, if he had not died
  • The Dependent must be appropriate claimant under the Act

The act recognises an action only for the benefit of certain dependents of the deceased. The dependents, in whose favour such an action has been recognised, are:

  1. The spouse or the former spouse of the deceased
  2. Any parent or other ascendent of the deceased
  3. Any person who was treated by the deceased as his parent
  4. Any child or other descendent of the deceased
  5. Any person who was treated by the deceased as a child of the family
  6. Any person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased.

Who can not claim

  1. Cohabitants who were living together as husband and wife but do not satisfy the ‘two year rule’
  2. Children who were not of the deceased but who were supported by the deceased whilst he or she was engaged in a marriage-like relationship with their parent
  3. Children otherwise supported by the deceased such as friend’s children
  4. Certain distant relatives supported by the deceased such as a great-nephew supporting a great-aunt
  5. Non-relatives who live together but do not enjoy a marriage-like relationship

In Kotke v. Saffarini, the deceased died in a car accident. A claim was brought by the partner of the deceased. She was not the spouse of the deceased and had not been living with the deceased in the same house for 2 years.

It was held that the plaintiff was not the dependent of the deceased and was not entitled to bring an action against the defendant

The Dependent must have suffered a loss of dependency

To determine the amount of damages it is important to look upon as to what was the likely benefit to the claimant or dependents if the deceased had survived.

In Taff Vale Rail Co. v. Jenkins, the father of a 16 year old girl was held entitled for the compensation as the girl would have earned substantial amount in the near future after the completion of her apprenticeship.

In assessing the future loss which are likely to arise, the prospects of the dependent’s may also be taken into account. Thus, while assessing loss to the widow because of her husband’s death, her prospects of remarriage were taken into consideration in the case Curwen v. James, in this case, a woman was granted compensation by the trial court when there was no evidence of the likelihood of remarriage but the widow remarried before the expiry of the time of appeal and therefore, the court of appeal redressed the damages accordingly.

The action must not be barred or excluded

For Example: where the deceased has settled their claim, where the deceased was entirely at fault or where the defence was available against the deceased.

Contributory Negligence

Section 5 of the Fatal Accidents Act 976 states that where a person dies as the result of partly his fault and partly of the other, so that the damages would have been reduced under the Law Reform(Contributory Negligence) Act , then the damages recoverable by the dependents would be reduced to a similar extent.

Damages

  • The purpose of providing damages to the dependents of the deceased under Fatal Accidents Act, 1976 is to provide the capital sum to cover the material comforts to the dependents which the deceased would have provided to those dependents if he had not died.
  • Section 3(2) of the 1976 Act, provides that damages must be divided among the dependents in such shares as may be directed.
  • In Knauer v. Ministry of Justice, it was held that the multiplier is calculated from the date of trial and not from the date of death.
  • The Fatal Accidents Act, 1976 provides only for the loss of dependency and not for the recovery of business losses.

Burgess v. Florence Nightingale Hospital of Gentlewomen

FACTS:  The plaintiff and his wife were professional dance partners. Plaintiff’s wife died because of the defendant’s negligent act. The plaintiff brought an action against the defendant hospital to claim for the business losses that he suffered due to the death of his wife.

HELD: The plaintiff was held not entitled for the compensation as no services were rendered by the wife to the husband.

  • Dependents can claim for pecuniary losses such as loss of financial support, benefits in kind, as well as non-pecuniary losses like loss of care and attention, domestic services etc.
  • Section 3(3) of the 1976 Act, provides that while assessing the widow’s claim in respect of her husband’s death “there shall not be taken into account the re-marriage of the widow or her prospects of re-marriage.” However, this has been changed now and the future prospects of re-marriage are taken into account.
  • The deceased’s divorce aspect could be taken into account and the multiplier could be reduced to that effect.
  • In assessing the damages, any benefits accrued to the dependent or which will or may accrue to the dependent as a result of deceased death are discarded.

Bereavement

  • Section 1A of the 1976 Act provides that damages can be awarded for mental distress (such as sorrow,grief, loss of enjoyment)
  • Claim for damages under this head are available only to:
  1. Wife or Husband of the deceased, or the Civil partner
  2. The parents of the child, if the deceased was unmarried minor child
  3. The mother of an illegitimate unmarried child
  • Minor or the adult child is not eligible to bring an action under this had.

Position In India

There is not much difference in the position of India from that of England regarding an action for compensation on the death of a person. There are various statutes in India which allows the compensation to the representatives of the deceased. Some of the examples are:

  1. The Workmen’s Compensation Act, 1923
  2. The Indian Railways Act, 1890
  3. The Carriage by Air Act, 1972
  4. The Air Corporations (Amendment) Act, 1971
  5. The Fatal Accidents Act, 1855

Fatal Accidents Act, 1855

The act recognises certain dependants and tort actions, on the death of a person. Section 1-A of this Act contains that the death of a person caused by the wrongful act, neglect or default is actionable and every such action or suit shall be for the benefit of the wife, husband, parent and child.  The dependents recognised under Section 1-A of the act are wife, husband, parent and child. The term parent includes father, mother, grandfather and grandmother, and the term child includes son, daughter, grandson and granddaughter.

In Budha v. Union of India, it was held by the court that an action by the brother of the deceased is not maintainable as he is not recognised as legal representative under section 1-A of the act.

Payable compensation under a statute

If a statute specifies the payment of some compensation in the event of the death of a person, then the compensation can be claimed on that basis.

In a case where the appellant’s husband died because of the electric shock after coming in contact with the live wire. The high court ordered the payment of Rs. 30,000 as compensation on the basis of the circular issued by the Maharashtra State Electricity Board. Before the compensation case was closed, the Maharashtra State Electricity Board issued another circulare increasing the sum to Rs. 60,000. It was held by the court that since the amount was increased before the compensation case was closed, the appellant’s are entitled for the increased amount of the compensation.

Conclusion

Earlier, the common rule was, smaller injuries fall within the purview of civil law and not the death of a person. But now, if the legal representatives of the deceased prove that the death was the direct cause of defendant’s tort, they would be entitled to special damages along with general damages.

Under English common rule, no cause of action arises against the person who is dead. However, the situation is quite different today, and the legal representatives are entitled to bring a legal action in a court of law. Similarly, the legal representatives of the deceased can be made liable in certain cases.

In India, the dependents in actual practice includes, brothers, sisters, uncle and aunt because of the prevalent joint family system and the social and economic conditions of the country. However, they are not recognised as dependents under the Fatal Accidents Act, 1855. Thus, there is a need for the amendment in the act so as to include more dependents as beneficiaries.

The rule in Baker v. Bolton has become outmoded and it is hoped that this outmoded rule will be discarded and the liability for the consequences of the death will be recognised either by some legislative actions or judicial pronouncements.

 

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