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

Assumptions ASSUMPTIONS

Plaintiff-Injured-No retribution

Defendant-Accused-No punishment

Admiralty Commissioner vs. S.S. Amerika

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

Facts

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

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

Surgeon dies-pending the matter

Facts

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

Pilot dives-Hotels pool-Claims 50 lakh Single judge Allowed the claim

Facts

Appeal Division bench

During pendency pilot dies

Pilots suit abated on his death & his representatives cannot be substituted
Division bench

EXCEPTIONS TO THE MAXIM

Common law
Actions on contract

Statutory

Fatal Accidents Act 1855

Obligation of parties

The Workmens Compensation Act 1923

Unjust Enrichment of tort feaseors estate

Carriage by Air 1934 Act

Legal rep have right

Motor Vehicles Act 1988

Legal reps do not have right

Employees State insurance Act 1948

Common law to Contract

Contract Parties Obligation

Death of the Parties Legal representatives Responsible to the extent of estate of deceased

Section 37 & 40 of Indian Contract Act

Unjust Enrichment of Tort-Feasors Estate

y Deceased person wrongfully grabs or appropriates

the property of another and enriches himself y Will not pass on to his legal representatives y Person actually entitled to the property vs legal representatives of deceased. y Sherrington case: Executors were held liable for 160 Oaks and 20 Oxen which the testator had wrongfully taken from the claimants land.

The Law Reform (Miscellaneous Provisions) Act 1934

y All causes of actions subsisting against or vested

shall survive for or against the deceased for the benefit of his estate. y Exception: Defamation, Assault , personal injuries y 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

y 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 y 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

y 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 LRs can claim from Df

Quantum of compensation

y 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)

y Df: Owners of coach vs Pf: Customer and his wife y Accident due to Df negligence y Wife dies after a month in hospital y 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. y Exception to the rule:  Death due to breach of contract is actionable

y Jackson vs Watson  Pf purchases tin of salmon from df  Pfs 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

y Fatal Accidents Act 1855 (Lord Campbells Act) 1976 y Employers Liability Act, y The Workmens Compensation Act, 1923 y Carriage by Air Act, 1961 y Motor Vehicles Act, 1988 y Employees State Insurance Act, 1948 y Carriage by Rail Act, 1972 y Carriage of Passenger by Road Act, 1974 y The Merchants Shipping Act, 1979

PRINCIPLES IN AWARDING DAMAGES

loss of dependency

the benefit of the Estate

Fatal Accidents Act 1855 (Lord Campbells Act) 1976

y The deceased person had he been alive would have

taken action against the df. y Else the LRs/ 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

y 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

Workmens Compensation Act, 1923

y S. 2(n) Workman: Means any person (other than a

casual nature and who is employed otherwise than for the purposes of the employers 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
y 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)
y The employer shall not be so liable y (a) for any injury which does not result in the total or

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

y 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; y 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

y An Act to declare that certain defences shall not be raised

in suits for damages in respect of injuries sustained by workmen.

y

(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:
y y y

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

y 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

y 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

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

Temporary disablement Condition resulting from an employment injury which requires medical treatment and renders an employee, as a result of such injury, temporarily incapable of doing the work which he was doing prior to or at the time of the injury]

51.Disablement Benefit.
y 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

y 51C. Accidents happening while travelling in employers

transport. 51D. Accidents happening while meeting emergency. 52A. Occupational disease.

54.Determination of question of disablement.