Effect of Death in tort
Dr Anusree A
Associate Professor
Govt Law College
Ernakulam
⚫ This topic can be studied under two heads
1. Effect of death on subsisting cause of action
2. causing of death how far is actionable in Tort
1.Effect of death on subsisting
cause of action
⚫ The common law rule in this aspect is governed by the
maxim “ Actio personalis moritur cum persona”-
Personal cause of action dies with the person.
⚫ Ie Any right of action which the parties had, come to
an end with the death of either of the parties.
⚫ This is explained by the decision of National
Commission in Balbir Singh v. Sri Ganga hospital
(2001) CPJ
⚫ In this case, complainant filed a case against a surgeon
whose negligence has resulted in the death of
complainants son. While the complaint was pending
surgeon died. Court applied the rule maxim “ Actio
personalis moritur cum persona”- Personal cause of
action dies with the person.
⚫ Held- Legal representatives of the deceased cannot be
held liable.
⚫ Exceptions to this rule: Do not apply to
1.law of contracts except of contract for personal service
Contractual obligations could be enforced by or against the legal
representatives of the parties to the contract. But in the case of
personal service ;like contract for painting etc it cannot be
enforced against the legal representative.
2.Action to recover property wrongfully appropriated by the
deceased to his own estate.( Law does not allow unjust
enrichment of tort feasors estate by the legal representatives)
Thus in Sherringtons case, the deceased having wrongfully
taken the plaintiffs land , his executors were held responsible for
the same.
This common law rule is abrogated by the passing of the Law
reform ( Miscellaneous Provisions) Act,1934.
Law reform ( Miscellaneous
Provisions) Act,1934.
⚫ The Act recognises the survival of causes of action
which were subsisting before the death of either of the
parties
⚫ The Act recognises exception where the cause of action
relates to defamation.
⚫ In India also general rule is survival of cause of action
as per Indian Succession Act, 1925, Sec 306.However
exceptions are recognised regarding defamation,
assault and personal injuries, which do not survive on
the death of parties.
⚫ If a person is injured in an accident, he may bring an
action for pain and suffering and for also for the
reduction in the expectation of life.
⚫ If the injured person dies and either he could not
bring an action during his life time or an action by
him was pending on the date of his death, his legal
representatives can pursue the action.
⚫ An action for shortening the expectancy of life was
recognised in Flint v. Lovell in 1935.
⚫ The House of lords held in Rose v. Ford that such a
claim would survive under the Law Reform Act, 1934.
The rules for determining compensation for
shortening the expectation of life was laid down in
Benham v. Gambling. Here death of 2and half year old
child happened and the basis of compensation was not
number of years of life lost but prospects of a
predominantly happy life.
⚫ An action for shortening expectation of life is
recognised in India also.
⚫ In Gobald Motor Service v. Veluswamy accident
resulting in death of a person, court awarded damages
for shortening expectation of life.
How far causing of death is
actionable in Tort
⚫ The common law rule is that in civil court, death of
human being cannot be complained of as an injury ,
though action for smaller injuries lies in civil law. This
rule is known as rule in Baker v. Bolton.
⚫ Baker v. Bolton-
⚫ The plaintiff and his wife were travelling in a coach.
An accident occurred due to negligence of the
defendant whereby the plaintiff himself was much
bruised and his wife was so severely hurt that she died
about a month later in a hospital.
⚫ Held: The plaintiff could recover compensation for
injury to himself and also for the loss of wife's society
and distress from the date of accident to the date of
death. But he could not recover anything for such loss
after her death.
Exceptions to Baker v. Bolton
⚫ 1. Death due to breach of contract:
⚫ Jackson v. Watson – causing the death of a person is
not actionable as a tort, but if death is the result of a
breach of contract, the fact of death may be taken into
account in determining the amount of damages
payable on the breach of a contract
⚫ In this case, plaintiff purchased a tin of salmon from
the defendant. The contents of tin being injurious his
wife died having consumed from the tin.
⚫ Held: death of the plaintiffs wife occurred due to
breach of contact on the part of the as he did not
provide goods suitable for human consumption.
⚫ Plaintiff is entitled to compensation for loss of
services of his wife due to her death.
Statutory Exceptions
⚫ English Position
⚫ In England some exceptions to Baker v. Bolton has
been created by statutes like fatal Accidents Act. On
the death of a person, his dependants can claim
compensation for the loss arising to them due to such
death.
⚫ Indian Position:
⚫ Statutory exceptions have been created in India also by
Fatal Accidents Act, Workmen Compensation Act,
Indian Railways Act and Carriage by Air Act
