UNIT-2 Death in Relation to Tort PDF

**[UNIT-2 DEATH IN RELATION TO TORT]** **1.** **Introduction** **2.** **Survival of actions** **Describe \`survival of actions\' in the light of provisions given in section 360 of the Indian Succession Act, 1925.** **3.** **Loss to dependents** **Define loss of dependents with the help of relev...

**[UNIT-2 DEATH IN RELATION TO TORT]** **1.** **Introduction** **2.** **Survival of actions** **Describe \`survival of actions\' in the light of provisions given in section 360 of the Indian Succession Act, 1925.** **3.** **Loss to dependents** **Define loss of dependents with the help of relevant cases.** **4.** **Deductions** - **[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]](https://heinonline.org/HOL/LandingPage?handle=hein.journals/lqr32&div=44&id=&page=&t=1559977159), 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]](https://www.jstor.org/stable/24874732)** 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 ]](http://www.legislation.gov.uk/ukpga/Eliz2/5-6/59/enacted) 2. [[The Carriage by Air Act, 1961 ]](http://www.legislation.gov.uk/ukpga/Eliz2/9-10/27/contents) 3. [[The Carriage of Passengers by Road Act, 1974 ]](http://www.legislation.gov.uk/ukpga/1974/35/enacted) 4. [[The Merchant Shipping Act, 1979 ]](http://www.legislation.gov.uk/ukpga/1979/39/contents) 5. [[The Fatal Accidents Act, 1976]](https://www.legislation.gov.uk/ukpga/1976/30/contents) 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)]**](https://www.legislation.gov.uk/ukpga/1976/30/section/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]**](https://www.bc-legal.co.uk/bcdn/281-204-fatal-damages-series-part-2-an-overview-of-lost-years-and-fatal-claims.html#_edn9) 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]](https://www.casemine.com/judgement/uk/5a8ff71b60d03e7f57ea7a16),** 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]](https://swarb.co.uk/taff-vale-railway-v-jenkins-hl-1913/)**, 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]](https://openscholarship.wustl.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2881&context=law_lawreview),** 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]](https://www.legislation.gov.uk/ukpga/1976/30/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]](https://www.legislation.gov.uk/ukpga/Geo6/8-9/28/contents) , 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)]](https://www.legislation.gov.uk/ukpga/1976/30/section/3) 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]](https://www.dacbeachcroft.com/es/gb/articles/2016/february/calculating-future-losses-in-fatal-accidents-act-claims-from-the-date-of-death-or-the-date-of-trial/)**, 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]**](http://www.guildhallchambers.co.uk/files/3_Fatalaccidentsupdate.pdf) **[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]](https://www.legislation.gov.uk/ukpga/1976/30/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]](https://labour.gov.in/sites/default/files/TheWorkmenAct1923(1).pdf) 2. [[The Indian Railways Act, 1890 ]](https://www.scribd.com/doc/46520476/The-Indian-Railways-Act-1890) 3. [[The Carriage by Air Act, 1972 ]](http://dgca.nic.in/nat_conv/The%20Carriage%20by%20Air%20Act%20and%20Amendment%202009.pdf) 4. [[The Air Corporations (Amendment) Act, 1971 ]](http://dgca.nic.in/nat_conv/NatConv_Chap1.pdf) 5. [[The Fatal Accidents Act, 1855 ]](https://indiankanoon.org/doc/594667/) [***[Fatal Accidents Act, 1855 ]***](https://himachal.nic.in/WriteReadData/l892s/3_l892s/THE_FATAL_ACCIDENT_ACT-1855-52805873.pdf) 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]**](https://indiankanoon.org/doc/413034/) 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]*](https://indiankanoon.org/doc/1864207/)***,* 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.