Death in Relation to Tort (Actio personalis moritur cum persona)
The general rule in common law is ‘Actio personalis moritur cum persona’ (personal cause of action, dies with the person). This has been abolished in England by the Law Reforms Act 1934.
The position in civil cases is that the right or liability survives, to the successor. Hence, on. the death of the injured person, his legal representatives may sue or continue the suit. Similarly, if the defendant dies his legal representative becomes liable.
Death of plaintiff or person wronged.
The leading case is Rose V. Ford.
G a girl of 23, was severely injured in an accident caused negli-gently by D. She was admitted to the hospital and treated. After two years, her legs were amputated. Four days later she died. Her mother sued D on (i) Loss of service (ii) Pain and suffering (iii) Diminition in the expectation of life.
Held, that P, had a right to sue. D was held liable on all the above three counts. Compensation was awarded under each count.
Rule in Bake V. Bolton.
Plaintiff P and his wife W were travelling on the top of a stage coach of D. Owing to the negligence of D, the coach overturned. P was bruised and W sustained severe injuries and after a month died.
Held, P was entitled to recover for bruises; P could also recover for loss of services, of his wife, upto her death.
Death of Wrong-doer
At common law no action could be brought but this has been abolished by the law Reforms Act 1934.
In India, an action may be maintained against the legal representatives or heirs or executors of the deceased of defendant. The action should be taken within the period of limitation i.e. One year.
The general rule is that if a suit is filed against the defendant and if he dies pending the suit, the suit abates and could not be continued against the heirs or legal representatives. Suits for slander, libel, false imprisonment, Assault, battery etc, fall into this category. In others the suit may be continued.
Discharge of Torts
The right to sue for torts, is discharged by:
Death of one of the parties
Waiver: When there are two or more remedies available for torts, the plaintiff may waive one and select the other. He cannot pursue both or take one after the other. If A is deprived of his goods by B, A may sue for tort of conversion, in the alternative he may sue for the price of the goods. He may elect one or the other.
Accord and satisfaction: Accord is agreement and satisfac tion is consideration or money payment. Such an agreement discharges of tort.
Release : This is the giving up of the right of action in tort. But, it should not be in ignorance of the rights or by mistake.
Acquiescence : This is acceptance and results in discharge of tort.
Limitation: Suits barred by Limitation, are automatically discharged. In India, the period of limitation is one year for Libel, false imprisonment, malicious prosecution etc.,