Death as a cause of action in Tort Law, and whether “Actio personalis moritur cum persona”; the cause of action dies with the person?
By Waboga David
According to the English common law, no cause of action arises against the person who is dead. This rule was contained in the maxim “Actio personalis moritur cum persona”; the cause of action dies with the person, thus, if any of the parties die, cause of action ends. Actions in contract generally escaped the rule, and so too did those in which property had been appropriated by a deceased person and added to his own estate
Therefore, death affects liability in tort in two ways:
1- The survival of causes of action under the Law Reform (Miscellaneous Provisions) Act 1934; and
2- The creation of liability under the Fatal Accidents Act 1976 for the benefit of dependents of deceased persons.
Dependents encompass:
(1) The spouse or former spouse of the deceased;
(2) The civil partner or former civil partner of the deceased;
(3) A person who was living as the spouse or civil partner of the deceased, in the same household, immediately before the date of the death and had been so living for at least two years
(4) Any parent or other ascendant of the deceased or person treated by the deceased as his parent;
(5) Any child or other descendant of the deceased or any person who has been treated by the deceased as a child of the family in relation to any marriage or civil partnership of the deceased; and
(6) Any person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased. Moreover, in deducing any relationship an adopted person is to be treated as the child of the persons by whom he was adopted, a relationship by marriage or civil partnership as one of consanguinity and a relationship of the half-blood as a relationship of the whole blood. The stepchild of any person is to be treated as his child and an illegitimate person as the legitimate child of his mother and reputed father
Therefore, by definition, Death as a cause of action is where person uses the death of a person to institute a cause of action because of the negligent act of the defendant. And at common law, the death of one person has never been regarded as an injury to another person and therefore no one could recover damages in respect of death of another. The maxim actio personalis moritur cum persona means that actions of tort or contract are destroyed by the death of either the injured or the injuring party. This in other wards means that if the victim or tortfeasor dies prior to judgment, the action perishes as well. However, legislative reforms allow for the survival of a cause of action to the estate of the deceased.
The Law Reform (Miscellaneous Provisions) Act states that “all causes of action shall survive against or for the benefit of the estate.” Except defamation, seduction, inducing a spouse to leave among others, damages recoverable do not include exemplary damages and damages for loss of earnings or earning capacity, where death caused by the defendant’s act, damages calculated without reference to loss or gain to estate consequence upon death, where death is caused by the defendant’s act, no damages are awarded for pain or suffering or mental harm or for loss of expectation of life.
One amount is awarded and the apportioned amongst claimants as the court thinks fit. The basic principle is that dependents are to be compensated for pecuniary loss resulting from the death either actual or prospective.
This is seen in the case of Uganda Electricity Board v G.W. Musoke where the high court had awarded each of the family members of the respondent with general and special damages before the supreme court awarded general damages to the respondent with 600,000 Uganda shillings to the respondent and 400,000 Uganda Shillings to his wife. In this case, the respondent’s family lost their soon when he was electrocuted by the appellants’ live electric cables left lying on the ground in Lugazi township.
Section 3(1) states that “when… the death of a person is caused by a wrongful act… and the act is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages…then…the person who would have been liable…shall be liable to an action for damages…” This was re-echoed in the case of Uganda Electricity Board v G.W. Musoke Section 3(2) states that funeral expenses can be recovered while sub section 3 is to the effect that in accessing damages, insurance, superannuation, pension payable as a result of death are not payable.
Section 4 allows an action to be brought for the following relatives: wife, husband, brother, sister (including half-brothers and half-sisters), parent, child, de facto spouse of the deceased.
The wrongful act causing death does not need to be tortious as applied in the case of Woolworths v Crotty, Mr. Crotty was killed by a faulty light globe he bought at Woolworths which electrocuted him. It was held that the wrongful act could be breach of an implied term of a contract.
The relatives are also required to establish that the wrongful act caused death. This was applied Uganda Electricity Board v G.W. Musoke, where the respondent was able to prove to the lower court that his child had stepped on live cables which belonged to the appellant and this had resulted to his death as a result of the electrocution from the live cables.
Therefore, who may sue?
According to Street on Torts, The action is brought in the name of the executor or administrator of the deceased, and lies in respect of loss of support for the benefit of the following relatives a wife, husband, or former wife or husband; registered same-sex civil partners and former registered same-sex civil partners; children, grandchildren, fathers, mothers, stepparents, grandparents, brothers, sisters, uncles, aunts, and their issue; adopted and illegitimate dependents; stepchildren of the several categories. If there is no executor or administrator, or if he fails to bring the action within six months after the death of the deceased, any dependent may bring the action. The Administration of Justice Act 1982 responded to social changes by including for the first time any person who was living with the deceased in the same household for at least two years before that date, and was living during the whole of that period as the husband or wife of the deceased. The provision now made for same-sex (and former same-sex) partners to claim is a further example of this branch of law responding to social change.
What then has to be proved?
It must first be proved, that the act caused the death. Thereafter, it must be shown that there was a ‘wrongful act, neglect or default’ by the defendant. These words presumably embrace any tort.
Consequently, if the defendant’s act was never actionable because he would have had a defense to any action brought by the deceased in his lifetime, no action will lie. Where the deceased died partly as the result of his own fault and partly as the result of the fault of any other person, damages are reduced to a proportionate extent in the same way that they are under the Law Reform (Contributory Negligence) Act 1945.
If a dependent is contributory, negligent then a cause of the deceased’s death, that dependent’s damages are reduced but the awards to other dependents are unaffected.
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, 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, 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.
What are the Exceptions to the maxim “Actio personalis moritur cum persona”?
There are two exceptions to the maxim “Actio personalis moritur cum persona”:
1- Action under Contract:
The maxim does not apply to the cases where an action is brought under the law of contract, therefore the legal representatives of the person can be made liable for the performance. However, if the contract entered into is a contract of personal service, then the legal representatives would not be liable for the performance. Thus, for example, there is a contract with A for singing on a particular event and meanwhile, A dies, then the representatives of A cannot be made liable for the performance.
For example in the case of Transvaal Investment Co. v. Atkitson , raises a broad point of principle in the law of quasi-contract. If A pays money to B, in such circumstances that he can successfully sue B in quasi-contract, and B pays the money- over to C, who takes it in good faith, can A success- fully sue C in quasi-contract?
The answer on principle would seem to be no, unless of course B was acting as agent for A or C, in which case B would be a mere conduit-pipe and the payment would in law be a payment by A to C. In any other circumstances it seems plain on principle that A cannot get a personal judgment against C in quasi-contract; his proper remedy against C is the proprietary one of "following" the money into the hands of C, assuming that such following is possible on the facts of the particular case.
The decision of Atkinson, J., in the instant case seems to bear out this view. B, an employee of the A Co., fraudulently obtained cheques belonging to and drawn by the A Co., and paid them into the bank account of his wife C. He told his wife that the cheques represented commission paid to him by the A Co., and C acted in this belief and with perfect innocence.
In accordance with B's instructions, C paid him out half the moneys so paid in to her account, and spent the other half on herself and- on house- keeping. When the A Co. discovered B's fraud there was nothing in C's account, so that there was no question of following. Could the A Co. nevertheless obtain judgment against C as for (I) money paid under a mistake of fact, or (2) money received to their Use?
Atkinson, J., held not. “It may be difficult," he said,” to regard the payments as money paid by the plaintiffs to the defendant, whether under a mistake of fact or at all. The plaintiffs never consciously paid the defendant anything.
2- Unjust enrichment of tortfeasor’s estate:
If someone, before his death has wrongfully appropriated the property of another person then the person whose property has been appropriated does not lose his right to bring an action against the representatives of the deceased and recover the property. The rationale behind it is that, only the thing actually belonged to the deceased can be passed to his representatives.
How do you Asses damages under Death as a Cause of Action?
Damages awarded are in respect of;
(1) Bereavement;
(2) Funeral expenses; and
(3) Loss of support.
1. Bereavement.
The spouse or civil partner of the deceased, the parents of a minor who was never married, or a civil partner may claim damages for “bereavement”. Such damages are awarded as a fixed sum, presently £12,980.
2. Funeral expenses.
“Dependents” are entitled to recover damages for funeral expenses that they have incurred. The cost of a wake is irrecoverable.
3. Loss of support: the test.
The Act allows recovery for a loss of support provided by the deceased. The right to sue for this loss is given to the deceased’s “dependents”. The Act simply says that the court may give damages proportioned to the injury resulting from the death to the dependents. It does not say on what principle they are to be assessed, but Pollock CB, in 1858, adopted the test which has been used ever since.
Pollock CB said that damages must be calculated: “in reference to a reasonable expectation of pecuniary benefit as of right, or otherwise, from the continuance of the life.”
The concept of a pecuniary benefit.
The test established by Pollock CB means that the dependents cannot recover if they have suffered only nominal losses or none at all. Nor can they recover if the deceased earned his living by crime, for then their claim arises ex turpi causa. However, the courts have stretched the concept of pecuniary benefit in holding that a child may claim damages for loss of his mother’s care and that in assessing this loss the court is not confined to evaluating her services as housekeeper but may take into account instruction on essential matters to do with his upbringing. Where a son who worked for his father at full wages under a contract was killed, his father was held to have no claim. Although he had lost the son’s services, he could not prove that he had lost any pecuniary benefit since he had paid full wages for them. An additional reason for rejecting the father’s claim in that case was that the father could not show any benefit accruing to him from his relationship with his son, but only that he had lost an advantage derived from a contract with him, and this was insufficient. “The benefit, to qualify under the Act, must be a benefit which arises from the relationship between the parties.”
In Malyon v Plummer the claimant widow had been in receipt of a salary of about £600 per annum for somewhat nominal services to her husband’s “one-man” company. The Court of Appeal estimated the value of her services to the company at £200 per annum and held that the balance, but only the balance, was attributable to her relationship as wife to the deceased. The £200 represented payment for services rendered under her contract of employment and could not therefore be recovered.
Reasonable expectation.
A mere speculative possibility of receiving a pecuniary benefit is insufficient, as where the person killed was aged four years and his father proved nothing except that he had intended to give the child a good education. On the other hand, there may be a reasonable expectation of pecuniary benefit although the relatives had no legal claim to support by the deceased, as where a son who was killed had voluntarily assisted his father in the father’s work, or where he once gave him money during a period of unemployment, or where a wife who was killed had gratuitously performed the ordinary household duties.
Indeed, it is not necessary that the deceased should have been actually earning anything or given any help, provided that there was a reasonable probability, as distinct from a bare possibility, that he would do so. A reasonable probability existed where the deceased was a girl of 16 who lived with her parents, was on the eve of completing her apprenticeship as a dressmaker, and was likely in the near future to earn a wage which might quickly have become substantial.
If a wife is separated from her husband at the time of his death, it is unnecessary for her to show that, on a balance of probabilities, she would have returned to live with her husband. The correct approach is for the court to determine whether there was a reasonable chance, rather than a mere speculative possibility, of reconciliation. If there was such a chance, the award should be scaled down to take account of the probability of the reconciliation taking place. Where the dependent was not married to the deceased but was living with him as his wife the court is directed by statute to take into account the fact that the claimant had no enforceable right to financial support from the deceased.
In conclusion once a person dies after setting a suit in motion, the suit can be proceeded with by the deceased’s beneficiaries and the damages are supposed to be distributed between the beneficiaries and finally the court is supposed to cover the funeral damages as discussed above.
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