DISCHARGE OF TORT

PROF. (DR.) C J RAWANDALE,

PROFESSOR, SYMBIOSIS LAW SCHOOL, NOIDA
 •  Death of parties;
•  Introduction
•  Waiver;
•  A right of action for a tort may come to an end in
one of the following ways: •  Release;

•  Accord and Satisfaction;

•  Acquiescence;

•  Statutes of Limitation.
BY DEATH OF PARTY/IES

•  The Position At Common Law:
•  Prior 1934:
•  The general rule was that the death of either party
extinguished any existing cause of action in tort –
Actio Personalis Moritur Cum Persona.
 
•  1934 and Thereafter:
•  The growth of motor traffic and its accompanying
toll of accidents led to passing of the Law Reform
(Miscellaneous Provisions) Act 1934 which
provides for the survival of causes of action in tort.
•  By Section 1(1) of the Act, all causes of action
subsisting against or vested in any person on his
death, except causes of action for defamation, now
survive against, or, as the case may be, for the benefit
of, his estate.
•  Illustration:
•  If a person is injured in an accident, he may suffer
loss in the form of medical expenses, loss of income
during or after confinement as a result of being
incapacitated from doing his normal work, pain and
suffering or the reduction in the expectation of his
life. He can obviously bring an action for the same.
•  If, unfortunately he dies, the legal representatives of
the deceased are entitled to pursue the same action.
•  Rose v. Ford, (1937) A.C. 826
•  A girl of 23 years was severely injured by an
accident, caused by the negligence of the defendant.
Two days after the accident, her leg was imputed and
four days after the accident, she died.
•  The father of the girl was entitled to claim
compensation for the benefit of her estate on
account of pain and suffering loss of leg and
diminution in the expectation of her life.

Section 1 (4) of the Act provides that
“where damage has been suffered as a result of a
wrongful act in respect o which a cause of action would
have subsisted had the wrongdoer not died before or at
the same time as the damage was suffered, there shall be •  The Court held ‘Where, however, the death of the injured
deemed to have subsisted against him before his death
such cause of action as would have subsisted if he had
died after the damage had been suffered.”
•  Otter v Church, Adams,Tatham & Co [1952] Ch. 280
•  This was an action in contract for professional negligence,
which survived at common law. It is submitted, however, that
the result would have been the same even if the claimant had
needed to rely upon the 1934 Act.
party is unconnected with the act or omission that gives rise
to the cause of action, it appears that substantial damages can
be recovered even though the deceased himself, had he been
alive when the action was bought, would only have recovered
nominal damages.’
 •  a. Action under contract
•  India
•  The rule has its application as under common law.
•  The rule that a cause of action came to an end with
the death of either of the parties did not apply to an
•  Exceptions
action under the law of contract. Contractual
obligations could be enforced by or against the legal
•  Action Under Contract
representatives of the parties to the contract.
•  Unjust Enrichment of Tortfeasor’s estate
•  In case of contracts of personal service, such as the
painting of a picture , however, the legal
representatives could not be bound.
S. 37. Obligation Of Parties To Contract
•  The parties to a contract must either perform or
offer to perform, their respective promises, unless
such performance is dispensed with or excused
under the provisions of this Act, or of any other law.
•  Promise bind the representatives of the promisors in
case of the death of such promisors before
performance, unless a contrary intention appears
from the contract.
Illustrations
•  A promises to deliver goods to B on a certain day
on payment of Rs. 1,000. A dies before that day. A’s
representatives are bound to deliver the goods to B,
and B is bound to pay the Rs. 1000 to A’s
representatives.
•  Mr. A, promises to paint a picture for B by a certain
day at a certain price. Mr. A, dies before the day. The
contract cannot be enforced either by A’s
representatives or by B.
S. 40. Person By Whom Promise Is To Be Performed
•  If it appears from the nature of the case that it was
the intention of the parties to the contract that any
promise contained in it should be performed by the
promisor himself, such promise must be performed
by the promisor. In other case, the promisor or his
representatives may employ a competent person to
perform it.
Illustrations
•  A promises to pay B a sum of money. A may perform
this promise, either by personally paying the money
to B by another, and if A dies before the time
appointed for payment, his representatives must
perform the promise, or employ some proper
person to do so.
•  A promises to paint a picture for B. A must perform
this promise personally.

•  Nrusingha Charan v. Ratikanta, AIR 1978 Orissa 217
•  A money decree was passed against a Hindu father in respect of
an amount received by him by misrepresentation.
•  It was held that the liability of the father in such a case was
personal. It was not a debt which could be realised from the
son under the dictum of moral obligation. Moreover, the
plaintiff’s relief under the law of torts had ended with the death
of the father and the son could not be made liable for the
same.
•  Zargham Abbas v. Hari Chand, AIR 1980 All 259
•  The suit for damages for defamation on account of malicious
prosecution was decreed against Zargham Abbas and his son, Ali
Abbas. At the appellate stage, Zargham Abbas died.
•  It was held that if the cause of action does not survive the
death of the first appellant, it is the appeal which would abate
and not the suit, and the decree under the appeal court still be
executed against the assets in the hands of the heir.
•  In this case the decree was jointly against the father and the
son. It was further held that the death of the father did not
affect the maintainability of the appeals from the decree.
MISTAKEN APPLICATION
•  Balbir Singh Makol v. Sir Ganga Ram Hospital,
(2001) C.P.J. 45 (N.C.)
•  A complaint was filed against a surgeon, whose blunder resulted
in the death of the complainant’s son. While the complaint was
still pending, the surgeon concerned died.
•  The National Commission applied the rule “Actio Personalis
Moritur Cum Persona” and held that by the death of surgeon,
the right of action had come to an end and the surgeon’s legal
heirs cannot be held liable in the case.
•  E.I. Ltd. v. Klaus Mittelbachert, AIR 2002 Delhi 124
•  A co-pilot in airlines stayed in Hotel Oberoi Continental, a 5-
Star hotel having the facility of swimming pool. While diving his
head hit on the bottom of the swimming pool, which resulted in
serious head injuries to the plaintiff. In the single judge decision
the plaintiff was allowed Rs. 50 Lakhs as Compensation.
•  The above decision was appealed before the Division Bench.
While the appeal was pending, the plaintiff died.
•  It was held that the plaintiff’s suit abated on his death, and
therefore, his legal representatives had no right to pursue the
case and could not seek substitution in this case. The earlier
Single Judge decision granting compensation was reversed.
WAIVER BY ELECTION
•  Where an individual has multiple remedies for a tort,
and he chooses to seek one of them, abjuring the
others, the other remedies are waived. He cannot
seek them if he fails in the one elected.
•  The term “waive the tort” does not imply that the
tort itself is waived; it is only the right to compensate
damages for the tort perpetrated, is waived.
•  A waiver is expressed or implied:
•  Express, when the person authorized to expressly
and in terms give it up, in which situation it is almost
equivalent to release;
•  Implied, when the individual authorized to a thing
does or permits something which is in contrast to
which he is entitled.
•  United Australia Ltd. V. Barclays Bank Ltd.,
1940 All ER 20 (HL)
•  The House of Lords distinguished between ‘the
election of remedies’ and ‘election of
substantive rights’.
•  In a case where the election is between two
remedies, it is not fulfilled solely by filing a case to
invoke one remedy until the judgement is obtained
whereas in a case where there is an election
between two inconsistent substantive rights, the
election may be fulfilled at an initial stage.
•  I l l u s t r a t i o n : - E l e c t i o n B e t we e n Two
Inconsistent Substantive Rights
•  If the plaintiff sold his goods to the defendant
because of fraud, he may either affirm the contract
and sue for the price or he may treat the contract as
void and sue for damages for fraud. This is an
example of election between two inconsistent
substantive rights
•  If the plaintiff institutes a suit for price of goods
affirming the contract, the election will be complete.
 •  The House of Lords concluded that where similar
•  Illustration: Election of Remedies
facts gave rise to a cause of action against the
defendant for money and to a separate cause of
•  Where similar facts gave rise to two cause of action,
action for damages in tort against another defendant,
one for money, and the other for compensation for
judgment obtained against the first defendant did not
tort, the plaintiff must elect one of the two remedies.
prevent the plaintiff from filing a case against the
other defendant in a separate action; but to the
•  Pl. Remember that such an election is irrevocable
extent, the judgement was satisfied, this constituted
until judgement was recovered on one cause of
satisfaction pro tantoof the claim for damages in the
action or the other.
cause of action against the second defendant.
 •  It was concluded that at common law the doctrine of
a bribed agent has, as against both the bribed agent
and the briber, the other remedies of
(a)  claiming the amount of the bribe as money had and
received, or
•  Mahesan v. Malaysia Government Officers’ Co- (b)  (b) claiming damages for fraud in the amount of the
operative Housing Society Ltd.  [1978] 2 All ER actual loss sustained in consequence of entering into
405 the transaction in respect of which the bribe had been
given;
•  but he could not recover both and had to choose
between the other remedies although he was not
required to make the election until the time for
entry of judgment in his favour on one or other of
the alternative cause of action.
RELEASE

•  It is open to an injured party to release the wrong-
doer from liability for compensation.
•  According to English Law, a release of rights must be
supported by consideration or by a formal document
signed, sealed and delivered.
•  According to Section 63, the Indian
Succession Act, consideration is not necessary
for release, and therefore, it would be open to an
injured party to release the wrong-doer without any
consideration.
•  But a release executed under
•  mistake (Hore v. Becher, (1842) 12 Sim 465), or
•  in ignorance of one’s rights (Phelps v. Amcott,
(1869) 21 LT 167), or
•  obtained by fraud (Hirschfield v. S.C. Ry. Co.,
(1876) 2 QBD 1)
•  is not binding.
ACCORD AND SATISFACTION
 •  “Accord” signifies the agreement,
•  An accord is an agreement between two or more
“satisfaction” the consideration which makes it
persons, one of whom has a right of action against
operative.
the other, that the latter shall render and the former
accept some valuable consideration in substitution
•  The satisfaction may be either executed [“I
for the right of action.
release you from your obligation inconsideration
of £100 now paid by you to me”] or it may
•  Just as civil obligation can be discharged by accord
be executor [ “I release you from your obligation in
and satisfaction, as also tortuous liability can be
considerationof your promise to pay me £100 in six
discharged by accord and satisfaction.
months”].

Accord And Satisfaction May Be Conditional
•  A person injured in an accident brought about by
the negligence of the defendant may accept an offer
of compensation, reserving to himself the right to
renew his claim if his injuries turn out to be worse
than they wereat the time of the accord.
•  Lee v L&Y Ry (1871) L.R. 6 Ch. App. 527;
•  Ellen v GN Ry (1901) 17 T.L.R.453;
•  North British Ry v Wood (1891) 18 R. (H.L.) 27.
Accord And Satisfaction May Extend To Only Part
Of Theclaimant’s Action
•  It is also possible for the parties, by an agreement
falling short of full accord and satisfaction, to limit the
issues between them.
•  Tomlin v Standard Telephones and Cables Ltd,
[1969] 1 W.L.R. 1378
•  An action for damages for personal injuries, where it
was agreed that the defendants would pay 50 per
cent of the claimant’s damages, leaving only the
amount of those damages tobe determined.
•  When an agreement had been reached between the
parties, the consideration of which may have been
settled to be paid even in future, the agreement once
reached satisfied the claim, and is a bar to an action
in court except of the agreement itself.
•  But the agreement must be based on the payment of
cer tain thing, otherwise an agreement,
unaccompanied by a consideration, is void and is not
a bar to the right of action.
ACQUIESCENCE
•  In equity, the claimant who delays for too long before
bringing a claim may, in the exercise of the court’s
discretion, be denied a remedy under the equitable
doctrine of laches.
•  “Vigilantibus non dormientius aequitas
subvenit” - equity aids the vigilant and not the ones
who sleep over their rights.
•  It refers to the unreasonable delay in enforcing a
legal claim or moving ahead with legal enforcement
as a right.
•  Lindsay Petroleum Company v Hurd (1874) LR
5 PC 221
•  “The doctrine of laches in courts of equity is not an
arbitrary or a technical doctrine. Where it would be
practically unjust to give a remedy, either because the
party has, by his conduct done that which might fairly
be regarded as equivalent to a waiver of it, or where
by his conduct and neglect he has, though perhaps
not waiving that remedy, yet put the other party in a
situation in which it would be unreasonable to play
cement if the remedy were afterwards to be
asserted, in either of these cases lapse of time and
delay are most material.”
 •  The Supreme Court of Canada asserted that “[T]he
•  Manitoba Metis Federation Inc. v Canada equitable doctrine of laches requires a claimant in
(Atty. Gen.) 2013 SCC 14 equity to prosecute his or her claim without undue
delay. It does not fix the specific limit, but considers
the circumstances of each case.”
STATUTE OF LIMITATION
 •  In India, the Indian Limitation Act, 1963 lays
down the respective period within which to sue for
•  Action for tort must be brought within the
different parts.
prescribed statutory period; otherwise the right to
sue is barred.
•  Section 3 (1) of the Limitation Act 1963,
subject to the provisions contained in Sections 4 to
•  In England, the Limitation Act, 1980 fixes the
24 (inclusive), every suit instituted, appeal preferred,
time during which actions of tort must be brought.
and application made after the prescribed period
shall be dismissed although limitation has not been
set up as a defence.
Rationale For The Defence
1.  It prevents the unfairness that would be caused to
defendants if claimants couldpursue them in respect
of long-forgotten wrongdoing.
2.  If limitation bars did not exist defendants might be
compelled to keep evidence indefinitely to ensure
that they could defend claims that may never be
brought. This would be a waste of resources.
3.  Limitation bars may help claimants to move on with
their lives.
4.  Limitation bars prevent claims from being decided
on the base of stale evidence. Many types of
evidence deteriorate with thepassage of time (e.g.
witnesses may die or leave the jurisdiction) and
determining disputes on the basis of incomplete
evidence is slow and there is a greater risk that the
court will reach an incorrect conclusion.
•  Caution:
•  There is a distinction between wrongs which are
actionable per se and those which are actionable
only where the plaintiff can prove that he has
suffered actual damage.
•  The period of limitation, in case of ‘Torts
Actionable Per Se’, runs from the time when the
wrongful act is committed;
•  The period of limitation, in case of ‘Torts
Which Are Actionable Only On Proof Of
Damage’, runs from the time of the plaintiff’s first
sustaining actual injury.
ANY QUESTION PLEASE!
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