TABLE OF CONTENTS

1. Page | 1 2. 3.

LIST OF ABBREVIATIONS TABLE OF CASES INTRODUCTION

4 5 6 7 8 9 12 15
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COMMON LAW RULE IN BAKER V. BOLTON CASE STATUTORY MODIFICATIONS DAMAGES RECOVERABLE

4. 5.

CONCLUSION BIBLIOGRAPHY

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LIST OF ABBREVIATIONS

1. AIRAll India Reporter 2. Cal..Calcutta 3. Co. Company 4. DelDelhi 5. e.g. example 6. ILR.Indian Law Reporter 7. Ltd. Limited 8. Pgpage 9. SC...Supreme Court 10. SCC.Supreme Court Cases

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TABLE OF CASES
1. Official Liquidator of Supreme Bank Ltd. v. P.A. Tendulkar [1973] 1 SCC 602 2. Bradshow v. L & NY Rly Co 3. Baker v. Bolton (1808) 1 Camp 493 4. Osborn v. Gillet, (1873)LR 8 Ex 88 5. Jackson v. Watson & Sons (1909)2 KB 193 6. Krishna Beri Sen v. Corporation of Calcutta, (1904) ILR 31 Cal 993 7. M. Veerapa v. Evelyn Sequeria AIR 1988 SC 506 8. Klaus Mittlebachert v. The East India Hotels Ltd. AIR 1997Del 201, p.231 9. Taffwale railway company v. Jenkins, (1913) AC1 10. SINGAPORE BUS SERVICE(1978)Ltd. V. Lim Soon Yong,(1985) 3 All ER 437 (PC) 11. Mallet v. Mcmonagle, (1970) AC 166\ 12. Davies v. Powell Duffryn Associated Colliries Ltd. ,(1942) AC 601 (HL) 13. Bishop v. Cunard White Star co.ltd., (1950) 240 WLR 481

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INTRODUCTION

The word tort in law means a wrong or injury which has certain characteristics, the most important of which is that it is redressable in an action for damages at the instance of the person wronged or injured, e.g., assault, libel, nuisance etc. Tortious liability arises from the breach of a duty primarily fixed by law, such duty is towards persons generally and its breach is redressable by an action for unliquidated damages. In the present project, we shall discuss, the common law maxim, actio personalis moritur cum persona , the right of a person dies with the death of the person. This means that in a civil court, no one can ask for damages for the death of a person, however, there are exceptions. If there is time between the wrongful act and the death, then damages can be recovered only for factors like society or services up to death. Thereafter we shall discuss the statutory modifications in Indian law and look at the remedies or damages that can be recovered, based mainly upon loss of dependency and benefit of the Estate. We shall also throw light upon the issue of the common law maxim being unfair to the dependants of the deceased as far as procuring damages is concerned.

COMMON LAW
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Rule of Actio Personalis Moritur cum Persona

This maxim, action personalis moritur cum persona, which means, a personal action dies with the person is a general rule applicable to torts and prevents representatives of the deceased from suing in his right for the suffering and pecuniary loss caused to him during his lifetime by reason of the injury of which he ultimately died. Thus, if an injury were done either to the person or property of another, for which damages only could be recovered in satisfaction, the action died with the person to whom, or by whom, the wrong was done. As regards all actions essentially based on tort, the principle was inflexibly applied. The maxim was originally introduced to prevent actions of a penal character like trespass and its offshoots being brought after the death of the wrongdoer against his representatives. Later on, the general language of the maxim was rather misapplied to cases of death of the injured person, though to such cases the reason of the rule had no application. In Official Liquidator of Supreme Bank Ltd. v. P.A. Tendulkar, the Supreme Court pointed out that the maxim was an invention of English Common lawyers. As has already been mentioned before, this maxim was mainly derived for the offence of action of trespass as once the wrongdoer died, his representatives could not be blamed for it. But this maxim was inappropriately applied in many cases and thus the extension was highly criticized by Winfield. The Supreme Court further pointed out that maxim did not apply to an action for breach of contract. In Bradshow v. L & NY Rly Co, when a passenger was injured by the negligence of a Railway Company and died of injuries sometime afterwards it was held that his executrix could recover as damages for breach of contract, the loss caused to his personal estate during his lifetime by way of medical expenses and his inability to attend to business.

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Rule in Baker v Bolton

Another rule of the common law prevents the representatives of the deceased from suing in their own right for loss resulting to them from his death, viz, the rule propounded by Lord Ellenborough in Baker v. Bolton, that the death of a human being cannot be a cause of action. In that case, the plaintiff sued the defendants, proprietors of a stage-coach, for causing the loss of the society of his wife who was injured by the negligence of the defendants while she was traveling in their coach, and died of injuries a month after. It was held that the plaintiff could recover for the loss of her society during that month but not after her death. In Osborn v. Gillet the plaintiff could not recover for the loss of society of his daughter who was run over and killed outright on the scene of the accident by the defendants negligence. In another case with similar facts, the claim for loss due to funeral expense failed. In the case of SS Merika, the admirality commissioners sued the defendants, the owners of the SS Amerika, to recover the loss due to their having had to pay allowances and commissions to the relatives of the crew of one of His Majestys submarines, the crew having been drowned when the defendants ship negligently ran into and sank the submarine. It was held that the plaintiffs could not recover. But the Bakers rule does not apply where the cause of the action is based upon the breach of contract. In Jackson v. Watson & Sons, the plaintiff claimed that his wife having consumed tinned salmon had died and thus claimed a breach of contract as it was the manufacturers responsibility to sell food fit for human consumption. There was a plaintiff claimed damages as his wife having performed services for him in the care of his house and family until her death, he was under the necessity, after her death, of hiring someone else to perform such services. It was held that such damages were recoverable.

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Statutory Modifications
Reason for the Statutory Modifications The result of the above two rules is that a person who caused the death of another cannot be sued in tort. His immunity was greater accordingly as the injury was graver causing instantaneous death of a person. The unsatisfactory state of law was brought into prominence when in the middle of the last century, a number of railway accidents occurred with fatal results. Thus, they led to the passing of the Fatal Accidents Act 1846. It was followed in India by the Fatal Accidents 1855 and by similar legislations in many of the American states.

ENGLISH LAW
Under the Law Reform (Miscellaneous Provisions) Act, 1934, on the death of any person all causes of action subsisting against or vested in him shall survive against or for the benefit of his estate, except action for defamation. Where a cause of action survives 1. the damages recoverable shall not include exemplary damages nor any income in respect of any period after the victims death 2. where the death of that person is caused by the act or omission giving rise to the cause of action, the damages shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included.

The object of the Act is to abolish the common law expressed in the maxim actio personalis moritur cum persona and to provide for the survival of causes of action subsisting at the time of the person wronged or the wrongdoer. The object is not to create a cause of action for death itself

or to affect the common law rule recognized in Bakers case that no such cause of action exists. The rule in Bakers case was overturned by the Fatal Accidents Act, 1846, for those dependants who were specified in the Act. The present Act is the Fatal Accidents Act, 1976 which
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the wrongful act, neglect or default of another, such as would have entitled the injured person to sue and recover damages in respect thereof, then the person who would have been liable if death had not ensued shall be liable for action of damages on behalf of the dependants.

INDIAN LAW
The first legislation in India on this subject was enacted in 1855. In that year an Act was passed called the Legal Representatives Suits Act, being Act XII of 1855. Under Act XII of 1855 an action may be maintained by the executors, administrators or representatives of a deceased for any wrong committed in the lifetime of the deceased which has occasioned pecuniary loss to the estate of such person, committed within one year before his death. Then came the Indian Succession Act, 1865 and the Probate and Administration Act, 1881. Both these Acts contained a section which is now reproduced as s. 306 of the Indian Succession Act, 1925. The material portion of the section says that

All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease survive to and against his executors or administrators, except causes of action for defamation, assault, as defined in the Indian Penal Code, or other personal injuries not causing the death of the party.

Initially, the Calcutta High Court and the Rangoon High Court held that the words personal injuries refer only to physical injuries. In Krisna Behari Sen v. The Corporation of Calcutta, it was held that a cause of action for malicious prosecution, survived to the representative of the deceased plaintiff.

Later, the Madras High Court held that the expression personal injuries not causing death of the party does not mean injuries to the body merely, but all injuries which do not necessarily cause damage to the estate of the person wronged.
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The controversy was finally resolved by the Supreme Court in M. Veerappa v. Evelyn Sequeria, by approving the view of the Madras High Court. So, the settled view is now that the expression personal injuries does not mean injuries to the body alone but all injuries to a person other than those which cause death. But in case the personal injuries cause the death of the party injured, the cause of death does not abate. In Klaus Mittlebachert v. The East India Hotels Ltd, the plaintiff, a German national suffered serious personal injury in a swimming pool while staying in Hotel Oberoi in New Delhi. The plaintiff filed a suit for recovery of damages for personal injuries in High Court of Delhi on Aug 11, 1975. The plaintiff died during the pendency of the suit on Sep 27, 1985, thirteen years after the injuries were received. The injuries suffered by the plaintiff had made him tetraplegic. The immediate cause of death was cardiac arrest which according to the medical evidence, which was accepted by the Court , was caused by the tetraplegic condition. The court, therefore, held that the death was caused by the personal injuries suffered in the swimming pool and the cause of action did not abate and could be continued by the legal representatives.

Next, the Fatal Accidents Act, 1855 was enacted. This is the Indian counterpart of the LORD CAMPBELLS Act. Section 1A enacts that whenever the death of a person shall be caused by wrongful act, neglect or default , the party who would have been liable if death had not ensued shall be liable to an action for damages, and such action shall be for the benefit of the wife, husband, parent and child, if any, of the deceased person, and in every such action the court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whose benefit such action shall be brought.

Section 2 has a provision which is absent in the English Act and which allows the representatives of the deceased to insert in the action for compensation, a claim for any pecuniary loss to the estate of the deceased occasioned by wrongful act or neglect or default.
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Salient features of the Act include 1. Relatives entitled to sue It confers a right of action on certain relatives, viz, wife, husband, parent which include father, mother, grandfather and grandmother, and child which include son, daughter, grandson, granddaughter, step-son and step-daughter. However, under the Act the right of the wife, husband, parent and child to recover compensation is not joint but distinct and one of them cannot give a discharge without the concurrence of person under disability. 2. Liability of person causing death A suit lies against a person who is guilty of some wrongful act, neglect or default and would have been liable to the deceased for the injury if the latter had not died of it. However, the suit will not lie if the death was due to a mere accident and not due to any neglect or breach of duty of the defendant.

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DAMAGES RECOVERABLE
(A)FOR LOSS OF DEPENDENCY:
The claim under the Acts is for injuriously affecting the family of the deceased. It is not the claim which the deceased could have pursued in his own lifetime because the claim is for damages suffered not by himself but by his dependants after his death. The Acts do not provide for a liability on no fault basis and wrongful act, neglect or default of the defendant or of some person for whom he is vicariously liable is necessary to be established to maintain an action under the Acts. The Acts do not provide the principle on which damages are to be assessed. The English Act merely says that damages may be awarded as are proportioned to the injury resulting from the death to the dependants respectively. The principle of assessment silent in these Acts was formulated by POLLOCK G.B. according to which damages are assessed in reference to a reasonable expectation of pecuniary benefit as of right or otherwise from the continuance of life. The damages are given in reference to a pecuniary loss, they are not given as a solatium, that is to say, for injured feelings. It is not necessary for a claim to succeed under the Acts that the deceased should have been earning money or moneys worth or contributing to the support of the plaintiff at or before the date of death provided that the plaintiff had a reasonable expectation of pecuniary benefit from the continuance of llife. Damages are not restricted to the deprivation of the amount which the deceased would have spent from his earnings on the dependants but will cover deprivation of benefit from a fund to which the

deceased and his employer would have contributed such as a Contributory Provident Fund. The assessment of damages to compensate the dependants is beset with
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difficulties because from the nature of things,it has to take into account many imponderables. In considering the effect to be given in the award of damages to be given in the award of damages to possible variations in the dependency there are two factors to be borne in mind. The first is that the more remote is in future the anticipated change, the less confidence there can be in the chances of its occurring and smaller the allowance to be made for it in the assessment. The second is that as a matter of arithmetic of the calculation of the present value, the later the change takes place, the less will be its effect on the total award of damages. Deductions: The damages to be awarded to a dependant of a deceased person under the Fatal Accidents Acts must take into account any pecuniary benefit accruing to that dependant in consequence of the death of the deceased. The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing, on the one hand, the loss to him of the future pecuniary benefit, and, on the other , any pecuniary advantage which from whatever source comes to him by reason of death. This balancing principle of bringing into account against the loss to the dependants any pecuniary benefit accruing to them in consequence of death has step by step been completely eroded in England by legislation. Gains made by dependants after death but which could not be described as resulting from or in consequence of death were not allowed as deduction. In an extreme case where the entire family income is from investments, and the whole of the income is inherited by the dependants, they may not be able to claim any damages as they are suffering no loss.

(B)FOR BENEFIT OF THE ESTATE:

Damages for the benefit of the estate are recoverable in England under the Law Reform (Miscellaneous Provisions) Act,1934. By abolishing the maxim, action personalis moritur cum persona, the Act enables the damages suffered by the
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deceased before his death under the heads loss of earnings, pain and suffering, and loss of expectation of life to be recovered for the benefit of his estate. The cause of action survives even if the death be instantaneous for the cause of action is completed by the infliction of injuries which precedes the death. The Act does not deprive the deceaseds dependents of their cause of action under the Ftal Accidents Act but the financial benefit accruing to the dependants under the Law Reform Act fell to be deducted from the compensation for the loss of dependency awarded to them under the Fatal Accidents Act before 1982 when the provision for the deduction was removed by Parliament. The Indian counterpart of the Law Reform Act is section 2 of the Fatal Accidents Act, 1855 which enables recovery of any pecuniary loss to the estate of the deceased occasioned by the wrongful act, neglect or default which caused his death. There can be no controversy that the damages recoverable under section 2 will include (a) loss of earnings and profits up to the date of death; (b) medical and hospital expenses if incurred; (c) pain and suffering; (d) loss of expectation of life and (e) funeral expenses, if paid out of the estate of the deceased. In Pickett v. British Rail Engineering Ltd. The House of Lords in an action for damages for personal injuries, overruling the decision of the Court of Appeal in Oliver v. Ashman, held that damages for loss of future earnings should include the whole period of plaintiffs pre-accident expectancy of earning life and not merely the post accident expectancy of working life. So, in computation of annual loss, the amount that the deceased would have spent on dependents is not taken into account. The result of such a computation was that in cases where the dependents were not the persons to whom the estate devolved,there was likelihood of duplication of damages. To remove this risk, the Parliament amended the law reform,in 1982, by providing that the damages recoverable for

the benefit of the estate will not include any damages for the loss of income in respect of any period after the victims death. Another point to be noticed from Gobald Motor Services case is that damages
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allowed for the benefit of the estate under the heads pain and suffering and loss of expectation of life are not to be deducted from the damages allowed to the dependents under section 1 A even if the claimants under the two sections are the same.

CONCLUSION
Considered merely as a final catastrophe, death does n ot require a separate chapter in the law of tort, but it does have an important bearing on liability in tort and its legal effects are most conveniently considered in a separate chapter. The death of a person may affect tortious liability in two ways : 1. It may possibly extinguish liability for a tort 2. It may possibly create liability in tort the common law maxim, actio personalis moritur cum persona, with its extension, was criticized by Winfield and found to be pregnant with a good deal of more mischief than was ever born of it.the Supreme Court has pointed that the maxim did not apply to actions based in contracts or where a tort-feasors estate had been benefited from a wrong-done. In common law, no one can recover the damages for the death of another. Therefore, the death of a human being could not be complained of as an injuri in civil court, - meaning an actionable injury.

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BIBLIOGRAPHY

1. RATANLAL AND DHIRAJLAL, THE LAW OF TORTS, 21ST EDITION 1987,

WADHWA AND COMPANY PVT. LTD.

2. WINFIELD AND JOLOVICZ, TORT, 11TH EDITION, SWEET AND MAXWELL 3. RAMASWAMY IYER, THE LAW OF TORTS, LEXIS NEXIS, 10TH EDITION,

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