Death in Relation to Tort
This topic will be studied under the two heads :
There are two primary legal issues regarding death and civil liability in tort law.
First, it considers the effect of death on an existing cause of action between two parties—whether a legal claim survives if either the claimant or defendant dies, allowing legal representatives to bring or defend the lawsuit.
Second, it examines when causing a person’s death becomes actionable in tort, determining whether it constitutes a legal wrong against the deceased that allows their legal representatives to sue, and whether it creates a separate legal wrong against dependants, such as a spouse and children, who had a direct interest in the deceased’s life.
1. Effect of death on a subsisting cause of action
Under traditional English Common Law, a personal cause of action terminates upon the death of either party, expressed by the maxim “Actio personalis moritur cum persona” (a personal cause of action dies with the person).
This means that whether the claimant (plaintiff) or the wrongdoer (defendant) dies, the right to pursue or maintain the lawsuit comes to an end.
The doctrine remains relevant in Indian legal jurisprudence, as shown in Balbir Singh Makol v. Sir Ganga Ram Hospital.
In that case, a complaint was brought against a surgeon whose alleged medical negligence caused the complainant’s son’s death.
When the surgeon died during the proceedings, the National Commission applied the maxim and held that the right of action had extinguished, so his legal heirs could not be substituted or held liable for his personal wrong.
East India Hotels Ltd. v. Klaus Mittelbachert
In East India Hotels Ltd. v. Klaus Mittelbachert, an airline co-pilot suffered severe head injuries after diving into the swimming pool at the 5-star Hotel Oberoi Continental, leading a single-judge bench to award him ₹50 lakhs in compensation.
When the hotel appealed to a Division Bench, the co-pilot died while the proceedings were pending.
The appellate court held that the suit abated upon the plaintiff’s death under the personal action doctrine, and his legal heirs had no right to substitute themselves or continue the case.
Consequently, the earlier compensation award was reversed.
The following exceptions have been recognized to the above rule :
(i) Action under contract.
Contractual actions are an established exception to the general rule that legal claims die with the individual, as rights and obligations arising under contract law generally survive the death of either party.
Under Sections 37 and 40 of the Indian Contract Act, legal representatives can enforce or be held liable for standard contractual duties on behalf of a deceased party.
However, contracts requiring specific personal service or individual skill, such as painting a portrait, are exempt, so legal heirs cannot be bound or forced to perform agreements dependent on the deceased person’s unique talents.
(ii) Unjust enrichment of tortfeasor’s estate.
Under historic principles, an estate could not be unjustly enriched by property wrongfully acquired by a wrongdoer before death, allowing victims to recover stolen assets or their equivalent value from the deceased’s executors, as illustrated in Sherrington’s Case involving livestock and timber.
This common law framework was modernized by the Law Reform (Miscellaneous Provisions) Act, 1934, whose Section 1(1) provides that existing legal claims generally survive the death of either party for or against their estate, subject to exceptions such as defamation.
Consequently, claims arising during a person’s lifetime, including personal injury actions for medical expenses, lost earnings, and shortened life expectancy, continue after death, allowing legal representatives to pursue compensation for losses suffered by the deceased.
Shortening of the expectation of life
Under tort law, compensation for shortening of life expectancy was first recognized in Flint v. Lovell (1935), where an active elderly man’s life was drastically reduced by a negligent accident.
Later, Benham v. Gambling and Yorkshire Electricity Board v. Naylor established that such damages should be moderate and based on the prospect of a happy life rather than simply the years lost.
In India, Section 306 of the Indian Succession Act governs the survival of actions, providing that most legal rights pass to executors or administrators, while personal tort actions such as defamation, assault, and personal injuries resulting in death end upon a party’s death.
However, courts differ on non-physical harm such as malicious prosecution: the Calcutta and Rangoon High Courts allow such actions to survive, while the Madras, Bombay, Patna, and Allahabad High Courts hold that they terminate upon the death of either party.
Rose v. Ford
Under the Law Reform Act of 1934, if an injured person dies before filing a suit for a shortened lifespan, the cause of action survives for the benefit of their estate, allowing legal representatives to initiate legal action on their behalf.
This principle was recognized by the House of Lords in Rose v. Ford, where a 23-year-old woman suffered severe injuries due to the defendant’s negligence, underwent leg amputation two days later, and died four days after the accident.
The court held that her father could recover compensation for her estate for pain and suffering, loss of her leg, and diminution of her life expectation.
Morgan v. Scoulding
In Morgan v. Scoulding, an individual was killed instantaneously in an accident, and the administrator of the estate filed a suit for damages.
The defence argued that no legal claim could have accrued during the victim’s lifetime because death was immediate.
The court rejected this argument and awarded compensation, holding that the cause of action arose from the negligent act causing the accident, not from the death itself.
Since the cause of action technically arose in the split second between the negligence and the fatality, it accrued before death, allowing the legal representatives to maintain the claim.
Supreme Bank v. P.A. Tendolkar
In the Supreme Court case of Supreme Bank v. P.A. Tendolkar, the key issue was whether a legal action concerning breach of statutory duties by a bank’s director abates upon his death.
Since the inquiry into the director’s personal conduct was already completed, leaving only the extent of financial liability to be determined, the court held that the cause of action did not terminate upon his death.
However, the legal heirs’ liability was not personal and remained strictly limited to the value of the assets or estate inherited from the deceased director.
Nrusingha Charan v. Ratikanta
In Nrusingha Charan v. Ratikanta, the court held that liability to return money obtained through misrepresentation is strictly personal and does not pass to the son.
When a money decree was granted against a Hindu father for funds obtained through misrepresentation, the court found that the liability was a personal one, not a valid family debt that the son was bound to discharge under any moral or religious obligation.
Since the action arose from the father’s personal tortious act, the plaintiff’s remedy ended with the father’s death, and the son could not be held responsible for repayment.
Zargham Abbas v. Hari Chand
In Zargham Abbas v. Hari Chand, a trial court issued a joint decree for damages against Zargham Abbas and his son, Ali Abbas, in an action for defamation arising from malicious prosecution.
When Zargham Abbas died while challenging the decision on appeal, the court clarified that if a cause of action does not survive an appellant’s death, only the appeal abates, not the original trial court judgment.
Thus, the decree remained enforceable against the deceased father’s estate and assets inherited by his heirs.
Since the decree was jointly passed against the father and son, the father’s death did not affect the maintainability of the appeal against the judgment.
Gobald Motor Service v. Veluswami
The legal claim for shortening of expectation of life is recognized in Indian jurisprudence, as established in Gobald Motor Service v. Veluswami.
In this case, a 34-year-old man, Rajrathnam, suffered critical injuries due to the defendants’ negligence and died three days later.
The court awarded ₹5,000 as damages for the loss of expectation of life, setting a standard compensation amount later adopted in similar cases.
2. How far is causing of death actionable in tort?
Position in England
Under historical English common law, while minor injuries were actionable in civil law, causing the death of a human being was not recognized as a civil wrong, based on the rule that “in a civil court, the death of a human being could not be complained of as an injury.”
Although the Law Reform (Miscellaneous Provisions) Act, 1934 later allowed legal representatives to claim rights that had vested in the deceased during their lifetime, common law barred dependants, such as a surviving spouse, from suing for personal or financial losses caused by the death, as causing death remained non-actionable under civil law.
The Rule in Baker v. Bolton
The rule that causing the death of a person does not constitute an actionable tort was established in Baker v. Bolton, where the plaintiff and his wife were injured when a negligently operated stagecoach overturned.
The husband suffered bruises, while his wife sustained fatal injuries and died in hospital a month later.
The court held that the husband could recover damages for his own injuries, loss of his wife’s companionship, and distress from the accident until her death, but could not recover compensation for any loss or damage occurring after her death.
Exception to the rule in Baker v. Bolton
Death due to breach of contract
While causing a person’s death is not actionable under general tort law, an exception arises when the death results directly from a breach of contract.
In such cases, courts may consider the fatality in awarding damages for the broken agreement, as demonstrated in Jackson v. Watson.
In this case, a man bought a tin of salmon containing injurious food, which caused his wife’s death after consumption.
The court held that the seller breached the contract by failing to provide goods fit for human consumption, entitling the husband to compensation for the loss of his wife’s services caused by her death.