Death in Relation to Torts

Actio Personalis Moritur Cum Persona

Exceptions

Principles in Awarding Damages

Actio personalis moritur cum persona

A personal cause of action dies with the person

Person –plaintiff or defendant

Cause of action comes to an end

Vested right gets extinguished

‘apersonal cause of action dies with the person’-Assumptions

ASSUMPTIONS

Plaintiff-Injured-No retribution

Defendant-Accused-No punishment

Admiralty Commissioner vs. S.S. Amerika

Facts •Amerika (steamship) collides- Royal Navy-submarine sinks.

Facts •Admiralty Commissioners-Pensions - legal representatives of the drowned •Admirally Commissioners-claimed -the owners of Steamship Amerika

House of Lords •No damages could be awarded as damages were too remote

Balbir Singh Makol vs. Sir Ganga Ram Hospital

Facts •Father of dead boy (complainant) vs Surgeon (Accused)- Dr negligence resulted in the death of boy.

Facts •Surgeon dies-pending the matter

National Commission

Held

•With the death of surgeon, the right action had come to an end and legal heirs of the surgeon cannot be held liable for the act of the surgeon

East India Hotels Ltd vs Klaus Mittelbachert

Facts •Pilot –dives-Hotel’s pool-Claims 50 lakh•Single judge Allowed the claim

AppealDivision bench

•During pendency pilot dies

Division bench •Pilot’s suit abated on his death & his representatives cannot be substituted

EXCEPTIONS TO THE MAXIM

Commonlaw

Actions on contract

Obligation of parties

Unjust Enrichment of tort feaseor’s estate

Legal rep have right

Legal reps do not have right

Common law to Contract

ContractParties Obligation

Death of the PartiesLegal representatives Responsible to the extent of estate of deceased

Section 37 & 40 of Indian Contract Act

Unjust Enrichment of Tort-Feasor’s Estate

Deceased person wrongfully grabs or appropriates the property of another and enriches himself

Will not pass on to his legal representatives Person actually entitled to the property vs

legal representatives of deceased.Sherrington case: Executors were held

liable for 160 Oaks and 20 Oxen which the testator had wrongfully taken from the claimant’s land.

The Law Reform (Miscellaneous Provisions) Act 1934

All causes of actions subsisting against or vested shall survive for or against the deceased for the benefit of his estate.

Exception: Defamation, Assault , personal injuries

Claim compensation for: injuries and loss during the life time shortening of expectation of life and not after the death.

Shortening of expectation of life

Flint vs Lovell: 69 year old-Injured due to negligence of df medical reports-survival for 1 year claims shortening of expectation of life House of appeals allowed

Rose vs Ford: 23 y girl –injured After 2 days loses legs After 4 days loses life Father allowed to claim for pain, suffering, loss of leg,

shortening of life

Morgan vs Scoulding Deceased dies instantaneously Df: No action as death was instantaneous and no

cause of action arose during the lifetime of the deceased.

Held: Cause of action arose when df drove negligently Act resulted in accident Cause of action arose before death LR’s can claim from Df

Quantum of compensation

Benham vs Gambling Death of 2 yr Awarded 200 pounds Prospect of life enjoyment are uncertain

Rule in Baker vs Bolton (Causing of death of a person is not tort)

Df: Owners of coach vs Pf: Customer and his wife

Accident due to Df negligenceWife dies after a month in hospital Pf could claim damages:

for injuries to self and his wife from the date of accident to date of her death nothing for her after her death.

Exception to the rule: Death due to breach of contract is actionable

Jackson vs Watson Pf purchases tin of salmon from df Pf’s wife dies after consuming the contents Held :

Breach of contract by Df as he did not supply consumable product.

Pf can claim for the loss of services of the wife due to her death

Statutory Exceptions

Fatal Accidents Act 1855 (Lord Campbell’s Act) 1976

Employer’s Liability Act, The Workmen’s Compensation Act, 1923Carriage by Air Act, 1961Motor Vehicles Act, 1988Employees State Insurance Act, 1948 Carriage by Rail Act, 1972Carriage of Passenger by Road Act, 1974The Merchant’s Shipping Act, 1979

PRINCIPLES IN AWARDING DAMAGES

loss of dependen

cy

the benefit of the Estate

Fatal Accidents Act 1855 (Lord Campbell’s Act) 1976

The deceased person had he been alive would have taken action against the df.

Else the LR’s/ dependants: Spouse-present/former, living as spouse in the same

house for last two years before the death of the deceased

Parent, ascendants, or a person who was treated as parent

Child or descendant, or a person who was treated as child

Child includes biological, adopted, step, & illegitimate Ant person who is issue of a brother, sister, uncle, or

aunt of the deceased.

Fatal Accidents Act 1855 in India-S. 1-A

Death should have been caused by: Wrongful, neglect, default act If no death resulted the injured was entitled to file suit

for damages If death results then the benefit of suit should go to

wife/husband/ child/parent/LR Damage should be proportionate to the loss resulting

from the death The amount received after clearing any expenses

would be divided proportionately among the different dependants

Workmen’s Compensation Act, 1923

S. 2(n) Workman: Means any person (other than a casual nature and who is employed otherwise than for the purposes of the employer’s trade or business) who is - (i) a railway servant (ia)(a) a master seaman or other member of the crew of a ship. (b) a captain or other member of the crew of an aircraft (c) a person recruited as driver helper mechanic cleaner or in

any other capacity in connection with a motor vehicle (d) a person recruited for work abroad by a company and who

is employed outside India in any such capacity as is specified in Schedule II and the ship aircraft or motor vehicle or company as the case may be is registered in India or;

2(d) dependent

Any of the following relatives of a deceased workman namely :- (i) a widow/ a minor legitimate or adopted son an

unmarried legitimate or adopted daughter or a widowed mother; and

(ii) if wholly dependant on the earnings of the workman at the time of his death a son or a daughter who has attained the age of 18 years and who is infirm;

Wholly or in part dependant

iii) on the earnings of the workman at the time of his death- (a) a widower (b) a parent other than a widowed mother (c) a minor illegitimate son an unmarried illegitimate daughter

or a daughter legitimate or illegitimate or adopted if married and a minor or if widowed and minor

(d) a minor brother or an unmarried sister or a widowed sister if a minor (e) a widowed daughter-in-law

(f) a minor child of a pre-deceased son (g) a minor child of a pre-deceased daughter where no parent of

the child is alive or (h) a paternal grandparent if no parent of the workman is alive; Explanation : For the purpose of sub-clause (ii) and items (f) and

(g) of sub-clause (iii) references to a son daughter or child include an adopted son daughter or child respectively

Employers liability (Accident arising out of and in the course of his employment)

The employer shall not be so liable -(a) for any injury which does not result in the total

or partial disablement of the workman for a period exceeding three days;

(b) in respect of any injury not resulting in death or permanent total disablement caused by an accident which is directly attributable to - the workman under the influence of drink or drugs or the wilful disobedience of the workman to an order expressly

given or to a rule expressly framed for the purpose of securing the

safety of workmen or the wilful removal or disregard by the workman

Amount of compensation

Where death results from the injury: an amount equal to fifty per cent of the monthly wages

of the deceased workman multiplied by the relevant factor;

or an amount of fifty thousand rupees whichever is more;

Where permanent total disablement results from the injury: an amount equal to sixty per cent of the monthly wages

of the injured workman multiplied by the relevant factor; or an amount of sixty thousand rupees whichever is

more.

THE EMPLOYERS LIABILITY ACT, 1938

An Act to declare that certain defences shall not be raised in suits for damages in respect of injuries sustained by workmen.

(a) "workman" means any person who has entered into, or works under: a contract of service or apprenticeship with an employer by way of manual labor, clerical work or otherwise, and the contract is expressed or implied, oral or in writing

Defence of common employment barred in certain cases

When personal injury is caused to a workman:

By reason of the omission of the employer to maintain in good and safe condition,

works, machinery or plant connected with or used in his trade or business,

by reason of any like omission on the part of any person in the service of the employer who has been entrusted

THE CARRIAGE BY AIR ACT, 1972

5. Liability in case of death. (2) The liability shall be enforceable for the benefit of such of the members of the passengers family as sustained damage by reason of his death.

(3) An action to enforce the liability may be brought by the personal representative of the passenger

THE MOTOR VEHICLE ACT, 1988

CHAPTER X- LIABILITY WITHOUT FAULT IN CERTAIN CASES

140. Liability to pay compensation in certain cases on the principle of no fault: the owners of the vehicles jointly and severally liable to pay compensation in respect of death or

disablement.

THE EMPLOYEES STATE INSURANCE ACT, 1948

The Act provides for benefits to employees: Sickness, Maternity and Employment injury

Employment injury- a personal injury to an employee caused by: Accident or An occupational disease Arising out of and in the course of his employment, An insurable employment

Disablement

Permanent partial disablement

Permanent total disablement

Temporary disablement

Disablement

Permanent partial disablement

Disablement as reduces the earn incapacity of an employee in every employment which he

was capable of undertaking at the

time of the accident resulting in the

disablement

Permanent total disablement

Disablement that incapacitates an

employee for all work which he was

capable of performing at the

time of the accident resulting in such

disablement.

51.Disablement Benefit.

51 A Presumption as to accident arising in course of employment- in the absence of evidence to the contrary, also to have arisen out of that employment.

51B. Accidents happening while acting in breach of regulations, etc.- An accident shall be deemed to arise out of and in the course of an insured persons employment notwithstanding that he is at the time of the accident acting in contravention of the provisions of any law applicable to him, or of any orders given by or on behalf of his employer or that he is acting without instructions from his employer, if--

(a) the accident would have been deemed so to have arisen had the act not been done in contravention as aforesaid or without instructions from his employer, as the case may be; and

(b) the act is done for the purpose of and in connection with the employers trade or business

51C. Accidents happening while travelling in employers transport.

51D. Accidents happening while meeting emergency.

52A. Occupational disease.

54.Determination of question of disablement.