NATIONAL LAW UNIVERSITY ODISHA, CUTTACK

Project in
LAW OF TORT
DEATH IN RELATION TO TORT

SUBMITTED TO

Ms. SUDHATTA BARIK

Ms. SONAL SINGH

SUBMITTED BY

Bhavya Jain (2019/B.A.L.L.B./042)

Rounak Raghuwanshi (2019/B.A.L.L.B./087)
Sakshi Mittal (2019/B.A.L.L. B/091)

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 TABLE OF CONTENTS

TABLE OF CONTENTS ...................................................................................................... 2

PREFACE ............................................................................................................................. 4

ACKNOWLEDGEMENT ..................................................................................................... 5

RESEARCH METHODOLOGY........................................................................................... 6

OBJECTIVES ................................................................................................................... 6

RESEARCH QUESTIONS ............................................................................................... 6

SCOPE .............................................................................................................................. 6

INTRODUCTION ................................................................................................................ 7

CHAPTER 1 ......................................................................................................................... 8

CONCEPT OF DEATH UNDER COMMON LAW ............................................................. 8

 ENGLISH LAW ......................................................................................................... 9

 INDIAN LAW ......................................................................................................... 10

CHAPTER 2 ....................................................................................................................... 11

DEATH AS EXTINGUISHING LIABILITY...................................................................... 11

A. Survival Cause of Action ...................................................................................... 11

B. “Subsisting” Action............................................................................................... 12

C. Damages Recoverable ........................................................................................... 12

CHAPTER 3 ....................................................................................................................... 14

DEATH AS CREATING LIABILITY ................................................................................ 14

I. Status Of Liability Under Common Law ................................................................... 14

II. Fatal Accidents Act 1976 ...................................................................................... 14

a) Damages that can be recovered .......................................................................... 16

b) Assessment of Damages .................................................................................... 17

c) Contributory Negligence.................................................................................... 18

CASE LAWS ...................................................................................................................... 19

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 1. Bolton v. Baker ........................................................................................................ 19

2. Burgess v Florence Hospital for Gentlewomen ......................................................... 19

3. Gobald Motor Services Ltd v R. M. K. Veluswami ................................................... 20

4. East India hotels Ltd v Klaus Mittelbachert .............................................................. 20

5. Balbeer Singh Makol v Sir Gangaram Hospital ......................................................... 21

6. M. Veerappa v Evelyn Sequeria ................................................................................ 21

7. Pickett v British Rail Engineering Ltd ...................................................................... 22

CONCLUSION ................................................................................................................... 23

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 PREFACE

As a part of NLUO curriculum and to gain knowledge in the field of Law of Torts, the
researchers were required to make a project on the topic “DEATH IN RELATION TO
TORT”. The main objective behind doing this report is to get knowledge about how death is
related with tort and how is the concept of death is applicable in tort law.

In this project, researchers have included the studies like, how the Fatal Accidents Act 1976
is applicable in relation to this tort and how is compensation paid to the victim.

Doing this project help the researchers to enhance their knowledge related to the concept of
foreseeability and its interpretation, conditions and essentials.

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 ACKNOWLEDGEMENT

The researchers would like to express his gratitude and appreciation to all those who helped
him in completing this project. A special thanks to the subject teacher of Law of Torts, Ms.
Sudhatta Barik and Ms. Sonal Singh, who gave research the opportunity to work on the project
topic “Death in Relation to Tort”. The researchers thank them for their help, stimulating
suggestions and encouragement which led us to complete this project successfully. Without
their help the completion of project was not possible.

The researcher also acknowledges the IT Department of NLUO, for providing him the Wi-Fi
facility which helped him to get the information for the research project.

At last but not the least, the research wants to thank his friends and all those who encouraged
him time to time to complete this research project.

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 RESEARCH METHODOLOGY

The research work will be completed in adherence to the Doctrinal Method of research and will
rely on primary and secondary sources of data. It shall be descriptive in nature and will also an
analytical approach, based on logical reasoning. The proposed research has been developed
from the quantitative point of view. The mode of citation that has been adopted is OSCOLA.

OBJECTIVES

 To understand the concept of death in relation to tort.

 To understand the concept of extinguishing and creating liability.
 To understand the nature of damages paid to a person.
 To discuss the concept of Fatal Accidents Act 1976 and the nuances in It.

RESEARCH QUESTIONS

I. How has the concept of Death in relation to Tort gain importance in the Indian Law?
II. Difference between Death as Extinguishing Liability and Death as Creating Liability.
III. What are the damages recoverable under this tort?

SCOPE
The aim of the project is to understand the concept of Death in relation to tort. It aims at
exploring the case laws related with it. The project also provides information about the different
liabilities arising with the tort. It covers few statutes applicable like The Fatal Accidents Act,
1976.

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 INTRODUCTION

When a person dies as a result of tort, there are two actions available to it –
Law Reform (Miscellaneous Provisions) Act 1934 and Fatal Accidents Act 1976
The 1934 Act overturned the severe common law stance, stating that either party's death in
tort extinguished any current cause of action.
A ' wrong death ' action allows the deceased to recover particular damages caused to those
dependents by the death of the deceased due to the deprivation of financial income or
financially measurable help.
The claim of the dependents is both derivative of the claim of the deceased and independent
of it. It is derivative because it will rely on the validity of any claim that would have been
accessible to the deceased (if the claim has been prohibited from the deceased, it will be
prohibited from the dependents). However, it is autonomous because the claim of the
dependents is for personal damages.
This paper further explains the topic in detail with respect to the decisions given in few cases.
And also explains how the concept has been evolved in various cases.

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 CHAPTER 1

CONCEPT OF DEATH UNDER COMMON LAW

Common Law is that body of law and juristic theory, which has originated, developed and
administered in England. This law comprises of the principles and rules of action, which derive
their authority solely from Customs and Usages of Immemorial antiquity, or from the
Judgments and decrees of courts and in particular the Ancient Unwritten Law of England.

The Common Law Maxim, in relation to Death in Torts, is actio personalis moritur cum
persona. The maxim means that ‘A personal right of action dies with the person’. At Common
Law, if an injury was 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. Prior to 1846 ie before enactment of the Fatal Accidents Act, 1846(English)
actions for death of a human being were not permitted even under the English Law of Torts.
This was due to two reasons, firstly, on account of the above-mentioned legal maxim, since a
civil action dies with the person, it could not survive even for the benefit of the estate; and
secondly, death of a human being was not considered ‘injury’. 1 However, it is not known when
this principle came into existence, as it is a very old principle. It has been criticized by the
judges on numerous occasions, as it is neither based upon justice or common sense.

In Official Liquidator of Supreme Bank Ltd v. PA Tendulkar 2, the Supreme Court held that the
maxim was “an invention of English common lawyers”.

The Supreme Court further held that the maxim did not apply to actions based in contract or
where a tort-feasor’s estate had benefitted from a wrong done.3

Further, under the common law too, no one can recover damages for the death of another person
and this rule was propounded in the case of Baker v Bolton.4 In this case, the death of a human
being could not be complained of as an injury, that is, an actionable injury. If there is an interval
between the wrongful act and the death, damages may only be recovered for loss of society or
services up to the time of death.

1
Cox v Ergo Versicherung AG (2014) UKSC 22.
2
Official Liquidator of Supreme Bank Ltd v. PA Tendulkar (1973) 1 SCC 602, p 615.
3
Ibid.
4
Baker v Bolton

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Cause of Action arises, when there is breach of warranty and in a case, tinned salmon sold by
the defendants to the plaintiff was fit for consumption, but the wife of the plaintiff died in
consequence of having that salmon and the plaintiff claimed damages on the ground that she
used to perform the duties of caring of the house and the family, he was under the necessity
after her death of hiring someone else to perform such services. It was held that such damages
were recoverable.5

 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/her shall survive against or for the benefit
of his estate, except action for Defamation. Where a cause of action survives, damages awarded
are not exemplary in nature and are not given in the form of income after the victim’s death
and are not calculated in reference to any loss or gain, except that a sum in respect of funeral
expenses may be included. The object of the act was to abolish the common law rule contained
in the Maxim and to provide for the survival of the cause of actions at the time of the death of
the person wronged or the wrongdoer.

The Fatal Accidents Act 1976, which consolidated all the older acts, provides that whenever
the death of a person is caused by the wrongful act, neglect or default of another, it entitles the
injured person to sue and recover damages and would be liable to damages on behalf of the
dependants, notwithstanding the death of the person injured. This Act provides a new cause of
action in favor of the dependants of the deceased, as distinguished from the continuation or
survival of the cause of action in favor of the deceased for the benefit of his estate, as is
provided in the Law Reform Act. Also, the spouse of the deceased and the parents of the minor
child can claim damages for bereavemt and proportional to the injury resulting from the death
to them.

5
Jackson v Watson & Sons, (1909) 2 KB 193: 100 LT 799.

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  INDIAN LAW
The first legislation in India on this subject was the Legal Representatives’ Suits Act, 1855.
Under this act, an action may be maintained by the executors, administrators or representatives
of a deceased person for any wrong committed in the lifetime of the deceased which has
occasioned pecuniary loss to the estate of such person and for no other wrong, committed
within one year before his death.

If personal injuries cause the death of the party injured, the cause of death does not abate. If
there is no break in the chain of causation, death resulting years after the injuries were received
may still be held to have been caused by the injuries if they materially contributed to the death
by hastening or accelerating it.

There are two separate causes of action, which are maintainable in a person’s death, namely,
“the dependant’s claim for the financial loss suffered and a claim for injury, loss or damage,
which the deceased would have had, had he lived, and which survives for the benefit of the
estate.”6

The Supreme Court has noticed that, although the English Act has undergone substantial
changes, the Indian Act has remained static and needs drastic amendments. 7

6
General Manager, Kerala State Road Transport, Trivandrum v Mrs Susamma Thomas AIR 1994 SC 1631, p
1632: (1994) 2 SCC 176.
7
Charan Lal Sahu v UOI AIR 1990 SC 1480: (1990) 1 SCC 613.

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 CHAPTER 2

DEATH AS EXTINGUISHING LIABILITY

Actio personalis moritur cum persona, a maxim that says “the right of cause of action of a
person dies with the person himself” is well recognized in law. According to the common law,
if either of the parties dies, any existing cause of action dies with the person on both the parties.

This is also discussed in the case of in Balbir Singh Makol v Sir Ganga Ram Hospital8

This principle also followed in the case of East India Hotels Ltd. V Klaus Mittelbachert9

There are some exceptions to the above rule-

1. Action under law contracts:

The above rule that says that a cause of action comes to end with the death of either parties is
not the case in contracts. Contractual obligations can be enforced by any legal representatives
of the deceased. Except in the case of personal services such as painting, stage performance
etc.
2. Unjust enrichment of tortfeasor’s estate:
If a person unjustly enriches himself with someone else’s estate and if the person dies the
property will not pass on to his legal representatives and would be returned in the form of
money or the property itself to the actual owner of the property.

The idea behind this is no one should unjustly enrich himself on the cost of another and only
what actually belonged to the deceased should be considered his estate.

A. SURVIVAL CAUSE OF ACTION.

The defects of the common law above came under the view of legislature and was overturned
by the passing of the Law Reform (Miscellaneous Provisions) Act 193410 , because of the
growth of motor traffic and increase in accidents.

Section 1(1) of the act says that “on the death of any person, the causes of action he had when
he was alive will subsist with him if the action is in benefit of a person”. It created an exception
in the case in which the right of actions comes to an end on the death of either of the parties.
Thus, after this act was passed if either of the plaintiff or defendant dies, it does not affect the

8
Balbir Singh Makol v Sir Ganga Ram Hospital (2001) 1 CPJ 45.
9
East India Hotels Ltd. v Klaus Mittelbachert (2002) Delhi D.B. 124.
10
The Law Reform Act 1934, s 1(1).

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subsisting cause of action. And if the person dies the legal representatives of the person are
entitled for compensation and can bring an action or get claim under Law Reform Act, 1934.
This was also laid down in Rose v Ford 11.

B. “SUBSISTING” ACTION
There may be some cases where the right of action arises after the death of the defendant. If
the damages are grave then compensation can be claimed from the legatees of that person. For
e.g. A person who have a company of manufacturing harmful gases dies and after that it leaks
and causes damage to people. The cause of action to sue him and claim damages still exists
and can be claimed from the legal representatives of the person.

Section 1(4) of the law reform act 1934, says, that where damage has been suffered as a
wrongful act in respect of which a cause of action would have subsisted had the wrongdoer not
died before or at the same time as the damage was suffered, the action shall be deemed to have
subsisted against him as it would have been if he had died after the damage had been suffered.12

Similarly, it was also held in Ronex properties ltd v John Laing13 construction ltd that “A right
to claim contribution from another tortfeasor is not a claim in tort and survives death without
reference to the Act of 1934 .14

But the act did not subside to the causes of defamation, assault, seduction, personal injuries or
for inducing one spouse to live apart from the other or to leave the spouse or for the damages
on the ground for adultery.

C. DAMAGES RECOVERABLE
As said before, if a cause of action survives, the damages in benefit of the deceased person-

a. Cannot include exemplary damages.

b. The damages limits in the case of breach of promise to marry and if required can flow
from the estate of the deceased.

c. No damages for loss of income after the death of deceased.

11
Rose v Ford (1935) 1 K.B. 354.
12
The Law Reform Act 1934, s 4.
13
Ronex properties Ltd v John Laing Construction Ltd (1983) Q.B. 398.
14
Watson v Cakebread Robey Ltd (2009) EWHC Q.B. 1695.

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d. A living person whose life expectancy has been reduced cannot claim damages intended
for his/her funeral expenditures .15

e. Between the period of injury and death of a person he can claim the loss of income and
medical expenses suffered during the interval.

f. Damages are also available in respect of services provided gratuitously . 16

g. Damages in shortening of life expectancy-

If the deceased is killed instantaneously in the accident, no damages arises since the death was
instant and no cause of action arises during the lifespan of the deceased.

17
Whereas, in the case of Gobald Motor Services Ltd , owing to the negligence of the
defendant, accident occurred resulting in the death of plaintiff after 3 days of the accident.
Damages were awarded in this case and followed in some subsequent cases as well.

• If the tortfeasor dies, the measure of compensations lies in the action bought against his
estate.

15
Drake v Foster Wheeler Ltd (2010) EWHC Q.B.
16
Morgan v Scoulding (1938) 1 K.B. 786.
17
Gobald Motor Service v Veluswami (1962) SC 1 SCC.

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 CHAPTER 3

DEATH AS CREATING LIABILITY

I. STATUS OF LIABILITY UNDER COMMON LAW

Death does not create a liability against the descendants of the deceased in the common law.
This rule was derived from the case of Baker v. Bolton18,1808 in which Lord Ellenborough
decided that ‘in a civil court the death of a human being could not be complained of as an
injury’. 19 The decision was just a Nisi Prius, and though no authority was cited for it, it has
been accepted as a correct statement by the Court of Appeal. It can only be reviewed by the
House of Lords.20 The case was never upheld in later cases.

II. FATAL ACCIDENTS ACT 1976

Provision for an action of defendants. The development of railways in England led to an
increase in the number of accidents, fatal and non-fatal, and this made a change in the law. If a
person was injured through a tort, the wrongdoer would be liable for the injury but the
dependants of those who got killed received nothing. Then in 1846, the Fatal Accidents Act
1846, commonly known as Lord Campbell’s Act came in effect. The act gave the dependants
of the deceased to bring a legal action for damages. Then came the Fatal Accidents Act 1976,
which is the modernised the process and repealed earlier legislation. The act provides that, ‘If
death is caused by any wrongful act, neglect or default which is such as would (if death had
not ensued) have entitled the person injured to maintain an action and recover damages in
respect thereof, the person who would have been liable if death had not ensued shall be liable
to an action for damages, notwithstanding the death of the person injured’. 21

Dependants. The dependants encompass –

1) The wife or husband or former wife or husband of the deceased;

2) The civil partner or former civil partner of the deceased;

18
Baker v Bolton [1808] 1 Camp. 493.
19
Jackson v Watson [1909] 2 K.B. 193.
20
Clark v London General Omnibus Co [1906] 2 K.B. 648; Berry v Humm [1915] 1 K.B. 630,631.
21
The Fatal Accidents Act 1976, s 1.

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 3) A person who was living as the spouse or civil partner of the deceased, in the same
household; immediately before the date of the death and had been so living for at least
two years;
4) Any parent or other ascendant of the deceased;
5) Any person treated by the deceased as his parent;
6) Any child or other descendants of the deceased;
7) Any child or other descendant of the deceased or any person who has been treated by
the deceased as a child of the family in relationship to any marriage or civil
partnership of the deceased;
8) Any person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased.

In deducing any relationship for the purposes of subsection (3), any relationship by
marriage or civil partnership shall be treated as a relationship by consanguinity, any
relationship of the half -blood as a relationship of the whole blood, and the stepchild of any
person as his child, and an illegitimate person shall be treated as the legitimate child of his
mother and reputed father.

Commencing proceedings. An action under the Fatal Accidents Act must normally be brought
by the executor or the administer of the deceased. If no action is brought within the six months
in the name of executor or administrator of the deceased, the action can be brought by and in
the name of all or any of the persons for whose benefit an executor or administrator could have
brought it. Not more than one action lies for and in respect to the same subject matter of
complaint.

Parasitic Nature and its consequences. The action created by the Fatal Accidents Act is “new
in its species, new in its quality, new in its principles, in every way new”. 22 If deceased himself
was liable for the injury caused to him and not killed, no action lies before the dependants. Nor
will there be such a claim if by contract with the defendant the deceased had excluded any
possibility of liability to himself. 23 The dependants will not have a claim if the deceased, before
his death, 24 had accepted compensation from the defendant25 in satisfaction of his claim, 26 or

22
Seward v Vera Cruz [1884] 10 App. Cas. 59.
23
Haigh v Royal Mail Steam Packet Co Ltd [1883] 52 L.J.Q.B. 640.
24
Reader v Molesworths Bright Clegg [2007] EWCA Civ 169; [2007] 1 W.L.R. 1082.
25
Jameson v CEGB [2000] 1 A.C. 455.
26
Read v GE Ry [1868] L.R. 3 Q.B. 555.

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had actually obtained judgement against defendant,27 or if by the date of his death his claim
had become statute-barred.28

a) Damages that can be recovered

Types of damages that can be recovered.

1 Bereavement;
2 Funeral Expenses; and
3 Loss of Support.

Bereavement- The spouse or civil partner of the deceased, the parents of a minor who was
never married, or a civil partner may claim damages for bereavement. Currently, a limited class
of applicants may claim statutory bereavement payments under section 1A of the FAA 1976,
while the actual statutory bereavement award is derisory at £12,980. The law' does not require
or allow the tribunal to assess the nature and magnitude of a particular parent's loss and grief
in relation to the baby' (F v Wirral MBC [1991] Fam 69 at 104 per Ralph Gibson LJ)

Funeral Expenses- Dependants are entitled to claim the funeral expenses that they have
incurred in case of death. The cost of wake is irrevocable. 29

Loss of Support- The Act allows to recover the loss of support that was provided by the
deceased. In 1858, Pollock CB adopted principle to assess the proportionality of damage with
the injury caused. Pollock CB said that damages must be calculated’ “in reference to a
reasonable expectation of pecuniary benefit as of right, or otherwise, from the continuance of
the life”. 30

The test established by Pollock means that the dependants cannot recover if suffered nominal
damages or none at all. Nor can they recover if the deceased person earned his livelihood by
crime, for then their claim arises ex turpi causa. 31 Also for claiming the benefit, the dependant

27
Damages Act 1996, s 3.
28
Williams v Mersey Docks and Harbour Board [1905] 1 K.B. 804.
29
Jones v Royal Decon etc NHS Foundation Trust [2008] EWHC 558 (QB).
30
Franklin v SE Ry [1858] 3 H.&N. 213,214.
31
Burns v Edman [1970] 2 Q.B. 541.

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must prove that the benefit must be a benefit which arises from the relationship. A mere
possibility of receiving a pecuniary benefit is insufficient, if the deceased was aged four years
and the father proved nothing except the fact that he wanted to give him good education. 32
Indeed, there is no need for the deceased to have actually earned anything or given any
assistance, provided there was a reasonable likelihood that he would have done so, as separate
from a bare option.

Dependants may claim pecuniary benefits (e.g. loss of financial support, in-kind benefits) and
non-pecuniary damage for the deceased's lost services (e.g. care services, domestic services).
Dependants may claim pecuniary advantages (e.g. loss of economic assistance, in-kind
advantages) and non-cash harm for the lost goods of the deceased (e.g. care facilities, national
services). “The dependency is fixed at the moment of death; it is what the dependants would
probably have received as benefit from the deceased, had the deceased not died. What decisions
people make afterwards is irrelevant.”33

b) Assessment of Damages
Damages for bereavement is fixed sum. Damages of funeral expenses can be calculated without
any difficulty. Damages for loss of support can be calculated in few ways, as follows.

 Assessment when there are multiple dependants. In calculating damages, the loss suffered
by each defendant should be separately assessed.
 Periodical payments. The regime for payment of damages by way of periodical payments
also applies to claim under the FAA 1976.
 Lump sum awards. In case of lump sum award is made, the process of assessment is very
similar to assessing future loss.
 Approach where deceased was the family breadwinner. The case when deceased was the
family breadwinner. The damages must include the expenditure of the deceased. It must,
however, be stressed that the standard fractions can be varied up or down if there is
evidence to justify that.34
 Approach where deceased provided but gratuitous services. The other type of case is that
where the deceased provided valuable but gratuitous service in looking after the home and
children.35 In any event, the loss by children of the services of the mother is one which is

32
Barnett v Cohen [1921] 2 K.B. 461.
33
Williams v Welsh Ambulance Service NHS Trust [2008] EWCA Civ 81.
34
Winfield 7 Jolowicz, Tort (9th edn, Sweet & Maxwell 2015)
35
Ibid

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 likely to be a declining one so it cannot be valued at a constant figure for the whole of the
child’s dependency. 36

c) Contributory Negligence
The contributory negligence of the deceased into account and the damages to the dependants
will be reduced accordingly. 37 In principle the damages awarded to the contributorily negligent
dependants should be reduced in portion to his share of responsibility, but the other dependants
should receive their damages in full, 38 since the remedy in Fatal Accidents Act is given to
individuals, not to dependants as a whole.

36
Spittle v Bunney [1998] 1 W.L.R. 847.
37
Fatal Accidents Act 1976, s 5.
38
Mulholland v McRae [1961] N.I. 135.

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 CASE LAWS

1. BOLTON V. BAKER
Fact- This was an action against the defendants as the owner of a stage coach, on top of which
the plaintiff and his late wife travelled from Portsmouth to London when it was reversed;
whereby the plaintiff was very injured himself and his wife was so badly harmed that she died
in a hospital about a month later. In addition to other unique harm, the statement indicated that
"through the premises, the applicant had been completely lost and deprived of his said wife's
convenience, fellowship, and aid, and had endured excellent sorrow, vexation, and anguish of
mind hitherto." The applicant appeared to be very attached to his dead spouse; and as a
publican, she had been of great use to him in conducting his business.

Judgement- The claim failed in part: ‘the jury could only take into consideration the bruises
which the plaintiff had himself sustained, and the loss of his wife’s society, and the distress of
mind he had suffered on her account, from the time of the accident till the moment of her
dissolution. In a civil Court, the death of a human being could not be complained of as an
injury; and in this case the damages, as to the plaintiff’s wife, must stop with the period of her
existence.’

2. BURGESS V FLORENCE HOSPITAL FOR GENTLEWOMEN

Fact- Before and after their marriage in 1952, the applicant and his wife were professional
dancing partners, their income earned from demonstration charges and prize money earned in
contests. Their joint charges were paid in cash to the spouse, placed in a drawer, and for any
specific purpose either of them took whatever money from the drawer. The wife of the plaintiff
died in January 1953 as a consequence of a surgeon's negligence. Under the Fatal Accidents
Act, 1846, the husband claimed damages for the loss of his spouse as a dancing partner and the
loss of her contribution to their common living expenses.

Judgement- It was decided that the spouse could not claim for the loss of his wife's services as
a dancing partner and could ultimately claim only a small amount for the contribution of the
dead wife from her share of income to the common living expenses and also for the loss of
services in the performance of household duties.

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 3. GOBALD MOTOR SERVICES LTD V R. M. K. VELUSWAMI
Facts- The appellant Gobald Motor Services Ltd was in a business of transporting passengers
between different areas in State of Madras. On 20 sept 1947 one of the buses of the company
was going from Dharampuram to Palni. 3 miles from Palni the bus met with an accident in
which a passenger Rajatraman sustained serious injuries and on 23 sept 1947, Rajatraman died.

A case was instituted against the bus service by the relatives of the deceased and claimed that
the bus driver was driving rashly and he was negligent in his act and compensation was claimed
under section 1 of Fatal Accidents Act for the pecuniary benefit they sustained and under
section 2 for the damage they suffered by the death of them.
The bus company in return pleaded that there was contributory negligence on the part of
deceased. was no prove of the bus driver being negligent and in any event the damages claimed
were excessive.

Judgement- The subordinate judge finds out that there was no evidence that the bus driver was
negligent but it was clear as the accident occurred on wrong side of the road so the company is
liable. The company tried to appeal in high court on basis and the court concluded that the
speed of the bus driven was excessive. The driver was also not competent to drive.
Therefore, the division bench concluded that the bus company was not only liable for the
negligence of the driver but also for appointing incompetent driver and is liable to pay damages
to the plaintiff under section 1 and 2 of The Fatal Accidents Act.

4. EAST INDIA HOTELS LTD V KLAUS MITTELBACHERT

Facts- A co-pilot in airline stayed in Hotel Oberoi Continental, a five-star hotel and as the hotel
was having facility for swimming pool, he goes for swimming where when he jumps his head
is hit by the floor of the swimming pool and it resulted in serious head injuries to the plaintiff.

Judgement- The court awarded a compensation of 50 lakhs to the plaintiff as compensation.

The court said that a five-star hotel charging hefty price should also take care of their guests
and any injury arising out of the faulty structures or negligence of the hotel management shall
be liable for damages. And said that liability out of these negligence of the hotel is strict and
absolute.
The judgement was then appealed before the division bench, and during the time when the
appeal was pending the plaintiff dies, and court said that the plaintiff’s suit subsided on his

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death and due to which his legal representatives had no right to continue the case and cannot
seek substitution in this case.

5. BALBEER SINGH MAKOL V SIR GANGARAM HOSPITAL

Facts- A complaint was filed by Balbir Singh Makol against the surgeon alleging that his son
died because of the negligence of the surgeon Dr. J. S. Makhani. While the proceedings were
going on, the Surgeon died.

In view of the above the Complainant has claimed the following reliefs:
(i) A sum of Rs.50 crores for the compensation/damages
(ii) To award costs of this complaint; and
(iii) Any other order which this Commission deems fit as per the facts and circumstances of
this case.
Judgement- 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 cannot be made liable for the same

6. M. VEERAPPA V EVELYN SEQUERIA

Facts- A tenant, Mr. Sequeira wanted to file an appeal in the Supreme Court an order of the
High Court, confirming an order of eviction passed against him in respect of his business
premises, and engaged the appellant, and Advocate of the Supreme Court to file the appeal.
The petition for Special Leave was dismissed.

The tenant thereafter filed a suit in the Court of District Munsiff against the appellant for
damages and compensation on the ground that the appellant has been negligent in rendering
professional services and misconducted himself by filing the appeal after a considerable delay.
As a result of the withdrawal of the appeal, he was evicted from his business premises, due to
which he incurred loss of income and business, beside suffering mental agony, worry and loss
of reputation. The plaintiff claimed damages but during the pendency of the suit, the plaintiff
died and his legal representatives, the respondents filed a petition.

The question was whether a suit for damages already instituted against a counsel has abated or
not consequent on the death of the plaintiff.

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Judgement- The District Munsiff upheld the objection and dismissed the suit as being abated
on his death, as per the Maxim Actio Personalis cum Moritur Persona, but the High Court held
otherwise and declared the legal representatives to be entitled to get impleaded and continue
the suit. It was settled 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 and the expression is to be
read ejusdem generis with the words “defamation” and “assault” and not with “assault” alone.

The appeal before the Supreme Court was dismissed, as the question whether the suit has abated
or not can be answered only after the nature of the suit is determined on the basis of the
materials placed and the evidence adduced by the parties. The suit will stand restored to the
file of Trial Court for disposal in accordance with law in the light of the guidelines given by
the Supreme Court.

7. PICKETT V BRITISH RAIL ENGINEERING LTD

Facts- Mr. Pickett, who was the plaintiff in the action, suffered from Mesothelioma, claimed
damages from the defendants, British Rail Engineering Ltd, his employers for serious personal
injury sustained in the course of employment. He developed this disease due to the asbestos
dust inhaled over the years while working in the defendants’ workshops. His expectation of
life was 1 year, as per the medical reports but he died 5 months later only.

The defendants admitted liability but plaintiff’s claim for loss of earnings consequent upon his
anticipated premature death was not allowed. He initiated an appeal, but died during this phase
and his personal representatives, that is, the widow was allowed to took over, as the
administratrix.

The case raised three important questions in the appeal, which are: (1) Damages for loss of
future earnings, (2) Damages for pain, suffering and loss of amenities, and (3) Interest on the
damages for pain and suffering.

Judgement- The Court of Appeal increased the award of General Damages to 10,000 Pounds,
but refused to allow the interest upon this award. The court left undisturbed the award for loss
of future earnings. It increased the award for loss of expectation of life to 750 Pounds.

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 CONCLUSION

Common Law is the body of laws, the development of which gives rise to new judicial
concepts to be applied to cases, that come in the courts for adjudication. The concept of
Death Related to Torts revolves around one such concept, that is, the maxim of Actio
Personalis Moritur cum Persona and the subsequent judicial precedents.
The other sources of this Tort lie in the legislations, such as the Law Reform (Miscellaneous
Provisions) Act, 1934 and the Fatal Accidents Act. The rights of action under the two statutes
are cumulative, with damages under the Law Reform Act going to the estate and those under
the Fatal Accidents Act going to the dependants. Damages under the first act are, in the case
of instantaneous death, confined to funeral expenses and since, these are anyway recoverable
under the second ac, there is no point of bringing a Law Reform Act claim. Where there is an
interval between injury and death and hence loss of amenity and earnings and so on, then no
doubt a Law Reform Act claim will continue to be presented, with one under Fatal Accidents
Act.
Also the tort explained the measures to decide the amount of compensation to be paid in
proportional with the damages caused. Thus, explained the right of the dependants to claim
for injury caused.

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