Actio Personalis Moritur Cum Persona Amended

Actio Personalis Moritur Cum
persona
A personal right of action dies with the person. At
common law, if an injury were done either to the
person or property of another, for which damages only
cold be recovered in satisfaction, the action died with
the person to whom, or by whom the wrong was done.
• It terminates automatically on the death of
either claimant or defendant. From the early
medieval perspective the old rule made quite
a lot of sense. Common law was concerned
not so much with reaching a fair resolution of
each dispute as with preventing extra judicial
resolution through feud or vendetta. From
that perspective the death of one of the
parties constituted the end of the dispute.
• The principle was inflexibly applied and its
genesis is hidden in aniquity.
• It is neither based upon justice nor common
sense.
• Further at common law, no one can recover
damages for the death of another. This is
known as the rule in Baker v Bolton ( 1808) 1
Camp 493 “ In a Civil Court, the death of a
human being could not be complained of as
an injury ” meaning an actionable injury. A
husband, parent, or master cannot recover
damages in respect of instantaneous death of
wife, child or servant.
• If there is an interval between the wrongful act and
the death, damages may only be recovered for loss
of society or services upto to the time of death.
• In Baker’s case the plaintiff and his wife were
passengers on the top of a stage-coach belonging
to the defendants. Owing to the negligence of the
defendants the stage-coach was overturned and
the plaintiff badly injured and the wife died
because of the injuries.
• It was held that the plaintiff was entitled to
damages for the bruises sustained by him and
for the loss of the wife’s society only till the
moment of her death.
• But the rule in Baker’s case does not apply
where the cause of action is based upon the
breach of a contract.
Jackson v Watson&Sons ( 1909) 2 KB 193
• In an action for breach of a warranty that tinned

salmon sold by the defendants to the plaintiff was
fit for consumption as human food, the plaintiff
claimed damages on the ground that his wife
having partaken of the salmon had in consequence
died, and that, she having performed services for
him in the care of his house and family until her
death, he was under the necessity after her death
of hiring someone else to perform such services.
• It was held that such damages were
recoverable.
In Official Liquidator of Supreme Bank Ltd v
P.A. Tendolkar
• The Supreme Court pointed out that the
maxim was “ an invention of English common
lawyers” and observed: It seemed to have
resulted from the strong quasi criminal
character of the action for trespass. Just like a
prosecution for criminal offence, the action for
trespass, which was the parent of much of our
modern law of tort was held,
by applying this maxim to be incapable of
surviving the death of the wrongdoer, and in
some cases, even of the party injured.
• The maxim actio personalis moritur cum persona
would not be applicable to actions based on
contract or where a tort feasor's estate had
benefitted from a wrong done. There is no reason
to extend the maxim to cases involving breaches of
fiduciary duties where the personal conduct of the
deceased director has been fully inquired into and
the only question for determination, on an appeal,
is the extent of the liability incurred by the
deceased direction.
• Such liability must necessarily be confined to the
assets or the estate left by the deceased director
in the hands of his successors. In so far as a heir
or legal representative has an interest in the
assets of the deceased director and represents
the estate, and the liquidator represents the
interests of the company, the heirs as well as the
liquidator should, in equity, be able to question a
decision which affects the interests represented
Klaus Mittelbachert v The East India Hotels
Ltd
• The plaintiff, a German national suffered
serious personal injuries on August 13, 1972 in
a swimming pool while staying in Hotel Oberoi
of New Delhi. The plaintiff filed a suit for
recovery of damages for personal injuries in
the High Court of Delhi on August 11 1975.
The plaintiff died during the pendency of the
suit on September 27, 1985, thirteen years
after the injuries were received.
• The injuries suffered by the plaintiff had made him
tetraplegic. The immediate cause of death was cardiac
arrest which acc to medical evidence was accepted by
the Court, was caused by the tetraplegic condition. The
Court therefore held that the death was caused by the
personal injuries suffered in the swimming pool and the
cause of action did not abate and could be continued
by the legal representatives. It was also held
alternatively that the suit was based on contract with
the hotel mgt and for this reason also it did not abate.
• But from the early 19th century onwards, there was
growing pressure for reform due to the increase in
accidents, notably transport accidents, and this pressure
was greatly intensified by the advent of railways: a man
who was merely injured due to the negligence of the
railway could recover damages, but if he died his family
got nothing.
Eventually, in 1846, Parliament passed ‘An Act for
compensating the Families of Persons killed by Accidents’,
a statute which became known as the Fatal Accidents Act.
This Act was speedily copied in many other common law
jurisdictions, not only those which were part of the British
Empire, such as Canada, Australia and New Zealand,
but also in the United States. However, the Act gave no guidance as
to the extent of the injuries for which damages could be obtained
- it said only: ‘and in every such Action the Jury may give such
Damages as they may think proportioned to the Injury resulting
from such Death to the Parties respectively for whom and for
whose Benefit such Action shall be brought’.
It was left to the Court of Queen’s Bench in Blake v Midland Railway
Coin 1852 to settle this issue by deciding that compensation
under the Act was limited to pecuniary losses.
• Much has changed in this area since the mid 19th
century.
The Fatal Accidents Act has been refined and re-

enacted; the list of those who can claim
compensation has been enlarged; new problems
have been encountered, such as whether to take
account of remarriage or repartnering prospects;
and some jurisdictions have amended their statutes
to
permit claims for non-pecuniary loss. In the 1930s, further
pressure for reform due to the increasing number of road
accidents led to the passing of legislation allowing a cause of
action to survive against deceased defendants: unlike the
railways, which survived collisions in perfect health, careless
car drivers often perished along with their victims. This
legislation also allowed the survival of a cause of action in
favour of the estates of deceased plaintiffs, which created a
new problem because of the potential overlap between the
claims of relatives under the Fatal Accidents Act and the
claim of the estate (usually inherited by the same relatives).
It has even provoked suggestions that the Fatal
Accidents Act has outlived its usefulness and should
be abolished, so that all claims would be made by
the estate and who gets what would be determined
by the laws of succession on death. But none of this
should be allowed to obscure the significance of the
original Fatal Accidents Act as an important and
distinctive piece of law reform - virtually the only
statutory interference with the common law of
negligence that happened during the 19th century.
Through the whole sequence of events from Baker v Bolton, through
the passing of the Fatal Accidents Act, to the decision in Blake v
Midland Railway Co - one figure stands out, that of Lord John
Campbell. As a young barrister, Campbell reported nisi prius cases,
and Baker v Bolton was included in the first volume of his reports - so
he was the means by which this decision came to be known. As
Attorney General, he appeared for the Crown in several actions
dealing with deodands16 (the pre-1846 way of penalising fatal
accidents). He was clearly aware that in Scottish law compensation
for fatal accidents (including ‘solatium’ for injured feelings) was well
established, because in 1839 he had to argue an appeal for the
defendant against the award of such compensation- though he would
probably have preferred to have been on the other side
Raised to the peerage as the result of a brief
appointment as Lord Chancellor of Ireland in 1841,
as a member of the House of Lords he played a
leading part in ensuring the passage through
Parliament of the Death by Accidents Compensation
Bill (still generally known as Lord Campbell’s Act)
and a companion piece of legislation, the Deodands
Abolition Bill. Finally, as Chief Justice of the Queen’s
Bench, he presided over the court that decided
Blake v Midland Railway Co.
• The law was not completely helpless,
however. If a particular person could be
identified as responsible for the death, then a
plea of felony could be made, resulting in
official action against the killer. Sometimes the
official response included an order for
reasonable compensation, to prevent the
dead man’s relatives taking more drastic
measures

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Actio Personalis Moritur Cum

• In an action for breach of a warranty that tinned

The Fatal Accidents Act has been refined and re-

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