DEATH AS A CAUSE OF ACTION

BY

GROUP SEVEN (7)

SUBMITTED TO DR (MRS) GINAH ELVIS-IMO IN THE FACULTY OF LAW, NIGER DELTA

UNIVERSITY.

MAY, 2023.

1|Page DEATH AS A CAUSE OF ACTION

 NAMES OF STUDENTS

IGBONGIDI, PRINCE IBENADOR UG/19/2636

IKPEBA, BEST WOUDATIEMONA UG/19/2361

HUMPHERY, TAMARATEKENANE UG/19/2360

INIMO-ETELE, GLORY BEINMOTEI UG/19/0950

INYANG, VINCENT ESSIEN UG/20/2673

IKAH, GRACE UG/19/0949

FRANK FESTUS OGBARA UG/18/1402

2|Page DEATH AS A CAUSE OF ACTION

 TABLE OF CONTENTS

Title page
Names of Students
Dedication
Acknowledgement
List of Textbooks
List of Statutes
Table of Cases
INTRODUCTION--------------------------------------------------------------------- 1.0
CONTRACTUAL AND CRIMINAL OVERVIEW------------------------------ 2.0
DEATH AS EXTINGUISHING LIABILITY------------------------------------- 3.0
DEATH AS CREATING LIABILITY---------------------------------------------- 4.0
RELATIONSHIP BETWEEN THE ACTS----------------------------------------- 5.0
CASE REVIEW------------------------------------------------------------------------- 6.0
CONCLUSION------------------------------------------------------------------------- 7.0

3|Page DEATH AS A CAUSE OF ACTION

 LIST OF TEXTBOOKS

Law of Tort, Ese Malemi, 2nd Edition

Winifield and Jolowics, Torts, 20th Edition

Flemming, Streets on Tort

Alobo, Eni Eja, Law of Contract

Chris Wigwe, Introduction to Nigerian Criminal Law.

4|Page DEATH AS A CAUSE OF ACTION

 LIST OF STATUTES

Constitution of the Federal Republic of Nigeria, 1999 (as amended)

Criminal Code Act, 2004
Fatal Accident Law 1961, Cap.40 (Lagos state)
Fatal Accidents Act 1976
Fatal Accidents Law Cap.43 (northern states)
Fatal Accidents Law, Cap.52 (eastern states)
Law Reform (Miscellaneous Provisions) Act 1934
Law Reform (Miscellaneous Provisions) Act 1971
Limitation Act 1980
Penal Code Act
Robbery and Firearms (Special Provisions) Act
Torts Law, Cap.122 (western states)

5|Page DEATH AS A CAUSE OF ACTION

 TABLE OF CASES

ADEKOYA V. FHA (2008) LPELR - 105 (SC)

ADMIRALTY COMMISSIONERS V SS AMERIKA (1917) A.C 38
AETNA CASUALTY & SURETY CO. V. HANNA (1985)
AMANAMBU V OKAFOR
BAKER V BOLTON (1808) 1CAMP. 493; 170 E.R 1033
BATAILLE V. METROPOLITAN LIFE INSURANCE CO 284 N.Y. 245 (1940)
BELLO V. AG OYO STATE (1986) LPELR 764@81
BENHAM V GAMBLING (1941) A.C 157 P. 160
COOKSON V KNOWLES [1979] AC 556
COX V ERGO VERSICHERUNG AG (2014) UKSC 22; (2014) 2 W.L.R 948 AT [10]
DEME V. BULE & ORS (2017) LPELR-44396(CA)
DONOGHUE V STEVENSON [1932] A.C.562; 1932 S.C
EGBE V. ADEFARASIN (1987) LPELR 1032
EGOLUM V. OBASANJO (1999)7 NWLR (PT 611) 355 @410
FENNELL V. SOUTHERN MARYLAND HOSPITAL (1983)
INEC V. ADP & ANOR (2023) LPELR-60333(CA)
INEC V. ADP (2023) LPELR-59689(CA)
JENYO V AKINRETI (1990) NWLR (PT. 135) 663
MADUKOLU V NKEMDILI (1962) 1 ALL NLR 587 AT 595
NAYLOR V YORKSHIRE ELECTRICITY BOARD (1969) A.C 529
PETROJESSICA ENTERPRISE LIMITED V LEVENTIS TRADING COMPANY LIMITED [1992] 5
NWLR (PT 244) 675 AT 678
ROSE V. FORD
SMITH V. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. (1979)
TAYLOR V O’CONNOR 18-CV-01476 (LDH) (CLP)
THE INCORPORATED TRUSTEES OF THE JAMAT-UL-MUSLIMEEN COUNCIL OF LAGOS VS OKI
(2010) 1 NWLR (PT 1176) 616.
THOMAS V. OLUFOSOYE (1986) LPELR 3237
TUKUR V. GOVT. OF GONGOLA STATE (1989) 4 NWLR (PT 112) 517
UBA PLC V. ABDULLAHI (2003) 3 NWLR (PT 807) 359

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1.0 INTRODUCTION

When a tort has been committed or has occurred, how may the parties resolve it, or bring it to an end?
How is the matter brought to a close? How may a person be released and set free from liability? How may
a tort become extinct?1 This paper seeks to examine how a wrong in tort may be settled, abated, or
otherwise brought to an end with ‗death‘ as the central theme for this discussion.

The Black‘s Law Dictionary2 defines ‗death‘ to mean ―the ending of life; the cessation of all vital
functions and signs.‖ Death is the end of the life of a person. It is also known as decease or demise.3 As a
general rule in torts, death does not extinguish a right of action. Right of action may therefore subsist and
vest in and be for the benefit of the estate of the deceased, except in a defamation suit.

1.1 What then is a ‘cause of action’?

‗Cause of Action‘ is ―A group of operative facts giving rise to one or more bases for suing; a factual
situation that entitles one person to obtain a remedy in court from another person.‖ 4 In the very recent
Court of Appeal case of INEC v. ADP & ANOR5 the court explained a Cause of Action to be "the fact
which establishes or gives rise to a right of action; that is the factual situation that gave rise to a judicial
relief. Also, In BELLO V. AG OYO STATE6, per Karibi-Whyte, JSC explained what a cause of action is
in the following way:

"...a cause of action is constituted by the bundle or aggregate of facts which the law will be
recognised as giving the plaintiff a substantive right to make the claim against the relief or
remedy being sought. Thus, the factual situation on which the plaintiff relies to support his
claim must be recognized by the law as giving rise to a substantive right capable of being
claimed or enforced against the defendant. In other word, the factual situation relied upon
must constitute the essential ingredients of an enforceable right of claim.”

The issue of cause of action of a legal suit, in private law like in tort is merged to a litigant‘s locus standi.
The Latin phrase “locus standi” means per se ‗standing to sue‘, and the main rationale behind the
requirement that a litigant must have standing to sue is the discouragement of frivolous claims. The term
denotes the legal capacity to institute proceedings in a court of law. Cause of action is a threshold to
justice and a condition precedent to the invocation of judicial powers as it affects not only a party but also
a court‘s jurisdiction.

1
Ese Malemi, Law of Tort (Princeton Publishing Company, 2013) p. 672
2 th
11 Ed Pg 897.
3
Supra n 1
4
Supra n 2
5
(2023) LPELR-60333(CA)
6
(1986) LPELR 764@81; Thomas v. Olufosoye (1986) LPELR 3237, Egbe v. Adefarasin (1987) LPELR 1032, Tukur v. Govt. Of
Gongola State (1989) 4 NWLR (pt 112) 517 and UBA Plc v. Abdullahi (2003) 3 NWLR (pt 807) 359." per Abubakar Muazu
Lamido, JCA (pp 22 - 23 paras c - b)

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The importance of locus standi and the impact it has on the jurisdiction of the Court to determine claims
filed by a Claimant against a tortfeasor was addressed by Achike JSC in the case of Egolum v. Obasanjo7
thus:

“It is trite that the locus standi of a Claimant is a crucial matter touching on the competence and
jurisdiction of the Court to adjudicate on the suit or application before it. It is a fundamental
jurisdictional question that can be raised at any time during the trial as a preliminary issue or
even raised for the first time on appeal.”(Emphasis added).

The pre-eminent status or stature of jurisdiction in the schema of legal proceedings is well ingrained in our
jurisprudence. Jurisdiction occupies an Olympian status in the adjudication process. Before the
commencement of an action, it is, therefore, imperative to ensure that the Court has the jurisdiction to
entertain the suit filed by the Claimant. It is, however, important to state that the failure of jurisdiction is
not necessarily an account of any defect in the Court but because a party might not have brought his case
within the contemplation of the law.8

1.2 What is the determinant of a cause of action; when does a cause of action accrue?

In INEC v. ADP (2023) LPELR-59689(CA) the Court asserted that "A cause of action arises the moment
a wrong is done to the Claimant by the Defendant and the wrong which is the basis of a dispute represents
a factual situation which entitles the Claimant to seek a remedy in a Court of law by way of enforcement.
To ascertain when the cause of action arose, it is expedient to look at the claim of the Claimant and the
reliefs sought.9

A cause of action is not normally ad infinitum. It comes to an end when a statute of Limitation states that
no Legal action can be taken in respect of it. In ascertaining the cause of action, there is first the question
of whether ―Actio personalis moritur cum persona‖ that is; the cause of action dies with the person? It is
trite that the question of whether or not a cause of action survives the death of a party is one of law to be
determined by the nature of the action or the capacity in which the dead party sued or was sued, and it is
not dependent on the say-so of a party.10

As a common law doctrine, no cause of action arises against the person who is dead. This rule is expressed
in the Latin maxim, Actiio personalis moritur cum persona, which literally means ‗the cause of action dies
with the person, thus, if any of the parties die, the cause of action ends. 11 Actions generally escaped this

7
(1999)7 NWLR (PT 611) 355 @410
8
Madukolu v Nkemdili (1962) 1 ALL NLR 587 at 595; Petrojessica Enterprise Limited v Leventis Trading Company Limited
[1992] 5 NWLR (PT 244) 675 at 678
9
Adekoya v. FHA (2008) LPELR - 105 (SC)." Per Monica Bolna'an Dongban-mensem, JCA (pp 20 - 20 paras c - d)
10
DEME v. BULE & ORS (2017) LPELR-44396(CA); The Incorporated Trustees of the Jamat-Ul-Muslimeen Council of Lagos Vs
Oki (2010) 1 NWLR (Pt 1176) 616." Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA (Pp 32 - 32 Paras A - B)
11
For the historical background, see Winfield (1929) 29 Col. L.R.239.

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rule, this is because of the exceptions that follow the doctrine of privity of contract – Agency, Assignment,
Collateral Contract, Trust etc. and so too did those in which property had been appropriated by a deceased
person and added to his estate.12

2.0 CONTRACTUAL AND CRIMINAL OVERVIEW OF DEATH AS A CAUSE OF ACTION

2.1 CONTRACTUAL OVERVIEW

A contract is an agreement between two or more persons which creates an obligation to do or not to do a
particular thing.13 Contract is predominantly concerned with agreements in which one party, or each party,
gives an undertaking or promise to the other. The contractual aspect of death as a cause of action in tort is
known as a ‗wrongful death claim‘, and it allows certain family members or beneficiaries of the deceased
person to sue for damages caused by the death. While wrongful death claims are not strictly contractual in
nature, they do involve a legal duty owed by the defendant to the deceased person, which is similar to the
duty owed under a contract.

In a contract, the parties involved are typically the individuals or entities that have agreed to the terms of
the contract. In the context of death as a cause of action in tort, the parties involved in a contract may
include:

1. The deceased person: The person who has died as a result of the alleged wrongful conduct may
be a party to the contract if the contract was entered into before their death.
2. The Claimant: The Claimant, in a wrongful death claim is typically a family member or other
individual who has been named as a beneficiary in the deceased person's will or estate plan. The
Claimant is responsible for proving that the defendant's wrongful conduct caused the death and
that damages should be awarded14
3. The Defendant: The defendant is the person or entity that is being sued for causing the death of
the deceased person. This could include an individual, a company, or a government entity15.
4. Other parties: Depending on the circumstances of the case, there may be other parties involved in
a wrongful death claim, such as insurance companies, medical professionals, or other individuals
or entities that played a role in the events leading up to the death.

It's worth noting that the specific parties involved in a wrongful death claim will vary depending on the
circumstances of each case.

An action under the Fatal Accidents Act must normally be brought on behalf of the dependants by the
executor or administrator of the deceased but where there is no personal representative, or no action is

12 th
Winfield & Jolowicz, Tort, 20 Edn, 2020 Sweet & Maxwell Publishers Pg 695.
13
Bilante Int’l Ltd. v NDIC (2011) 6 (Pt. 1) MJSC 69at 71.
14
Rose V. Ford
15
Section 1(1) Fatal Accidents Act 1976.

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brought by him within six months, any dependant who is entitled to benefit under the Act may sue in his
own name on behalf of himself and the others. Subject to the court‘s powers under the Limitation Act
1980, the action must in any case be brought within three years of the death.16

The dependant‘s action is parasitic on the deceased‘s action, if the deceased would be unable to sue for
any reason had he lived, the dependant will not be able to sue either. The position is different, however, if
the contract merely limited the defendant‘s liability. In this situation, the deceased could have sued for
some damages and, therefore, the way is open for the dependant‘s claim.

Similarly, the dependants will not have a claim if the deceased, before his death, had accepted
compensation from the defendant in satisfaction of his claim, or had actually obtained a judgment against
the defendant or if by the date of his death, his claim had become statute-barred.

Below are a few cases that involve the contractual aspect of death as a cause of action in tort:

1. Fennell v. Southern Maryland Hospital (1983) - In the case, the Claimant‘s wife died as a result
of the Defendant hospital's negligence in administering medication during surgery. The Claimant
brought a wrongful death claim against the hospital, alleging that the hospital had breached its duty
to his wife by failing to provide proper medical care. The Court found that the Claimant had
presented sufficient evidence of negligence to allow the case to proceed to trial.

2. Smith v. State Farm Mutual Automobile Insurance Co. (1979) - In this case, the Claimant‘s
son died in a car accident caused by the Defendant's insured driver. The Claimant brought a
wrongful death claim against the defendant's insurance company, alleging that the company had
breached its duty to provide adequate insurance coverage for the accident. The court found that the
insurance company had no duty to provide additional coverage beyond the limits of its policy, and
dismissed the Claimant‘s claim.

3. Aetna Casualty & Surety Co. v. Hanna (1985) - In this case, the Claimant‘s husband died as a
result of the Defendant's negligence in installing a defective water heater. The plaintiff brought a
wrongful death claim against the defendant, alleging that the defendant had breached its duty to
provide a safe product. The court found that the defendant had breached its duty of care, and
awarded the plaintiff damages for the loss of her husband's companionship, as well as other
economic and non-economic losses.

2.2 CRIMINAL OVERVIEW

In furtherance to the civil aspects of wrongful death as a cause of action in tort, there may also be criminal
consequences for causing someone's death as death on its own is purely a crime against the state, which

16
Winfield and Jolowiz “Torts” nineteenth edition

10 | P a g e DEATH AS A CAUSE OF ACTION

ipso facto is a crime. Criminal charges may be brought by the government against the person or entity
responsible for the death, and if convicted, the person may face imprisonment, fines, or other penalties.

Criminal liability for death resulting from a tort typically arises when the actions of the tortfeasor are so
egregious that they amount to a criminal offense. In such instances, the tortfeasor may be charged with a
criminal offense, such as manslaughter or murder. For example, if a person is driving under the influence
of alcohol and causes an accident that results in someone's death, the driver may be charged with vehicular
manslaughter or even murder, depending on the circumstances. Similarly, if a person intentionally harms
another and the victim dies as a result of the injuries, the perpetrator may be charged with murder.

It is noteworthy that criminal liability for death resulting from a tort is distinct from civil liability. In a
civil lawsuit, the victim's family or estate may seek compensation for damages caused by the tortfeasor's
actions, such as medical expenses, lost income, and pain and suffering. In a criminal case, the focus is on
punishing the tortfeasor for their actions and deterring others from engaging in similar behaviour in the
future.

The specific criminal charges that may be brought in a case of wrongful death will depend on the
circumstances of the death and the laws of the jurisdiction in which it occurred. For example, in Nigeria, if
the death was caused by a reckless or negligent act, the person responsible may be charged with
manslaughter or negligent homicide. If the death was caused intentionally, the person may be charged
with murder or another form of homicide.

It is important to note that criminal charges and civil claims are separate legal processes, and a person may
face both criminal charges and a civil lawsuit for the same act that caused someone's death. However, the
standards of proof and the remedies available in each process are different. While a criminal conviction
may result in imprisonment or other penalties, a civil lawsuit may result in monetary damages awarded to
the deceased person's family members or estate. Where in a civil claim the Claimant is to prove his case
on the preponderance of evidence a criminal Prosecutor is to prove his case beyond reasonable doubt.17

There have been many court cases involving death as a cause of action in criminal law. Here are a
few notable examples:

1. People v. O.J. Simpson18: This case involved charge of murder against former football
player O.J. Simpson, who was accused of killing his ex-wife Nicole Brown Simpson and
her friend Ron Goldman. Simpson was acquitted of the criminal charges but later found
liable for the deaths in a civil suit.

17
Under Section 135 – 137 of the Evidence Act, the general of law or rule of evidence is that a person who claims is to prove
or establish what he claims. The Latin maxim is: Affirmanti non neganti incumbit probatio – which means that the burden of
proof, is on the person who claims and not on he who denies.
18
1995 WL 1748075 ( Cal. Super. Ct. Oct 3 1995)

11 | P a g e DEATH AS A CAUSE OF ACTION

 2. Commonwealth v. Michelle Carter19: This case involved charge of involuntary
manslaughter against Michelle Carter, who was accused of encouraging her boyfriend
Conrad Roy III to commit suicide through text messages and phone calls. Carter was found
guilty and sentenced to 15 months in prison.
3. State of Minnesota v. Derek Chauvin20: This case involved charge of second-degree
murder, third-degree murder, and manslaughter against former Minneapolis police officer
Derek Chauvin, who was accused of killing George Floyd by kneeling on his neck for
more than nine minutes. Chauvin was found guilty of all charges and sentenced to 22.5
years in prison.

In furtherance, the Nigerian Constitution provides for the use of the death penalty as a punishment
for certain crimes. Section 33(1) of the Constitution of the Federal Republic of Nigeria, 1999
(as amended) provides that every person has the right to life, and that no one shall be deprived of
their life intentionally, except in accordance with a court order made in respect of a criminal
offense punishable by death.

The Nigerian legal system provides for several legislations on causing the death of another person.
One of the most relevant legislations is the Criminal Code, which is applicable in the southern
states of Nigeria. The Criminal Code provides for several offenses related to causing the death of
another person, including murder, manslaughter, and infanticide.

Under Section 316 of the Criminal Code Act, any person who unlawfully kills another person
with intent to kill, or with intent to do grievous harm, or who causes the death of another person
by means of an unlawful act, is guilty of murder and liable to the punishment of death.

Under Section 317 of the Criminal Code Act, any person who unlawfully kills another person,
but without the intent to kill or to do grievous harm, is guilty of manslaughter, which is
punishable by imprisonment for life.

In addition to the Criminal Code, there are other laws in Nigeria that provide for offenses related
to causing the death of another person. For example, the Penal Code Act, which is applicable in
the Northern states of Nigeria, provides for similar offenses related to causing the death of another
person, including murder and manslaughter.

19
474 Mass 624(2016)
20
27-CR-20-12646

12 | P a g e DEATH AS A CAUSE OF ACTION

There are also other laws that provide for specific offenses related to causing the death of another
person, such as the Robbery and Firearms (Special Provisions) Act, which provides for the death
penalty for armed robbery resulting in death.

These cases show the various ways in which death can be a cause of action in criminal law, and
the different outcomes that can result from these cases depending on the specific circumstances
and evidence presented in court.

3.0 DEATH AS EXTINGUISHING LIABILITY

Tort covers a variety of claims. They are usually compensation claims, brought by someone who has
suffered harm, against someone else who is alleged to have been responsible for that harm. How does
death matter in all of this?

There are really two questions, the first rather easier to answer than the second:

1. What effect does the death of one party to a tort dispute have on that dispute?
2. Does it make any difference whether the death was caused by the other party, and/or was a
consequence of the injuries the dispute was about?

At common law, the general rule was that the death of either party extinguished any existing cause of

Action in tort—actio personalis moritur cum persona meaning ―A personal action dies with the person‖.

The common law rule is now overturned. It was not until 1934 that the defects of the law were forced on
the attention of the legislature by the growth of motor traffic and its accompanying toll of accidents. If a
negligent driver was killed in the accident that he himself had caused, nothing was recoverable from his
estate or his insurer by those whom he had injured.21

By the provision of section 1(1) of the Act22, all causes of action subsisting against or vested in any person
on his death, except causes of action for defamation, now survive against, or, as the case may be, for the
benefit of, his estate. The exclusion of actions for defamation from the 1934 Act was not so much the
result of a conscious decision of policy that such actions should not survive death as of a desire to avoid
potentially controversial areas and deal with the urgent issue of deaths in road accidents.

The modern position, established in 1934, is that tort actions have a life of their own, and do not die with
either of the people involved in them. Put more formally: On the death of any person ... all causes of

21
The Law Reform (Miscellaneous Provisions) Act 1934 was passed to provide generally for the survival of causes of action in
tort.
22
Law Reform (Miscellaneous Provisions) Act 1934

13 | P a g e DEATH AS A CAUSE OF ACTION

action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of,
his estate.23

This reversed the early common law rule that actio personalis moritur cum persona— ‗a personal action
dies with the person. In other words, it terminates automatically on the death of either the Claimant or
Defendant. From the early medieval perspective, of course, the old rule made quite a lot of sense: common
law was then 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 modern rule—that rights of action usually do not die with either of the people involved, even if they
are ‗personal‘ rights—is therefore the opposite of the medieval rule. But the change is not quite as
important as it sounds. What modern rule does is ensure the survival of rights of action? If, at the instant
before death, there was a right to sue, then that same right is available after the death. But the right does
not expand or grow. By and large, nothing that occurs after the claimant‘s death can be regarded as a legal
wrong to the Claimant: nothing that happens to their body can be an ‗injury‘; and they no longer have any
property or other assets to be taken from them. This branch of the law, therefore pays little heed to dignity
or respect for the deceased.

Again, dead people are not regarded as blameworthy, and so a case that Defendant was responsible for
some harm or other will have to be based on the Defendant‘s pre-death behaviour. The effect of death is
that all the rights and liabilities accumulated up to that point are transferred to the deceased‘s estate, to be
sorted out by the executors or administrators. It is really just a more subtle application of the medieval
approach, allowing property disputes to continue (because, after all, someone must own the property in
dispute), but closing down more ‗personal‘ disputes—not with the abruptness of the medieval rule, but
nonetheless quite firmly. The old attitude still applies in very ‗personal‘ disputes: actions for injury to
reputation terminate with the death of either party (though this aspect of the 1934 Act has been criticized
for failing to include other torts protecting merely dignitary interests, such as false imprisonment); and
claims for ‗exemplary damages‘—meant to call attention to outrageous breaches of duty—do not survive
the death of the claimant.

The general effect of death on tort claims, therefore, is to crystallize the claim at that point. Any claims
which existed immediately before the death remain in existence, and must be resolved as part of the
process of administering the deceased‘s estate. Death neither increases nor reduces one‘s liabilities: it
simply draws a convenient line under them.

23
Law Reform (Miscellaneous Provisions) Act 1934, section 1(1).

14 | P a g e DEATH AS A CAUSE OF ACTION

4.0 DEATH AS CREATING LIABILITY

At common law, death could not give rise to a cause of action in other persons, derived from the case of
Baker v Bolton24, which was upheld by the House of Lords in Admiralty Commissioners v SS Amerika25.
Long before that case, however, the legislature had intervened. This legislation for a lucid understanding
shall be perused carefully, hereunder.

4.1 FATAL ACCIDENTS ACT, 1976

Provision for an action for dependants -

A reform in the legislation was required because, while individuals who survived an accident may recover
significant damages, the dependents of those who were killed could receive nothing. This was due to the e
xpansion of railways in England, which resulted in a significant increase in the frequency of accidents, bot
h fatal and non-fatal. Fatal Accidents Act

According to the Act, the person who would have been liable for damages on behalf of the dependents, de
spite the death of the injured party, shall be liable whenever the death of a person is caused by the wrongfu
l act, neglect, or default
of another, such as would have entitled the injured party to sue and recover damages in respect thereof.

Who then is a Dependant?

Dependent has multiple legal meanings. Generally, dependent refers to an individual who relies on
support from another individual and usually cannot exist or sustain themselves independently without the
aid or support of someone else. A legal dependent is an individual who relies on support from another, as
depicted by law.26

According to Winfield, 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.27

4.2 COMMENCING PROCEEDINGS

If there is no personal representative or no action is brought by him within six months, any dependent who
is eligible to receive benefits under the Act may bring a lawsuit in his own name on behalf of himself and
the others. Normally, an action under the Fatal Accidents Act must be brought on behalf of the dependents

24
(1808) 1Camp. 493; 170 E.R 1033
25
(1917) A.C 38
26
Cornell Law School: Legal Information Institute, Dependent www.law.cornell.edu accessed 16 May 2023
27 th
W.E. Peel and J. Goudkamp, Winfield & Jolowicz; Tort (19 edn, Sweet & Maxwell, 2014),1637

15 | P a g e DEATH AS A CAUSE OF ACTION

 by the executor or administrator of the deceased.
The action must, in any instance, be filed within three years of the decedent's passing, subject to the court'
s authority under the Limitation Act of 1980.

4.3 DAMAGES THAT CAN BE RECOVERED

Certain types of damages can be recovered. Damages were to be awarded in respect of:

 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‖.

 FUNERAL EXPENSES

Dependents are entitled to recover damages for funeral expenses that they have incurred. The cost of a
wake is irrecoverable.

 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 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‖.

4.4 LOSS OF SUPPORT: THE CONCEPT OF A PECUNIARY BENEFIT

Before discussing the subject matter, it is important to have a grasp of what a pecuniary benefit is. A
pecuniary benefit is a type of advantage or gain that can be measured in monetary terms. In legal terms, a
pecuniary benefit is also known as a legal benefit or legal value. Examples of pecuniary benefits include;
salary, bonuses, stock options, and commissions. 28

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 – from a baseless or illegal cause.

4.5 LOSS OF SUPPORT: REASONABLE EXPECTATION.

A mere hypothetical prospect of obtaining a financial gain is insufficient, as in the case of the four-year-
old victim, whose father could only demonstrate his intention to provide for the child's schooling. On the

28
LSD, Pecuniary Benefit www.lsd.law Accessed 16 May, 2023.

16 | P a g e DEATH AS A CAUSE OF ACTION

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.
In fact, it is not required that the deceased had been actively working or helping others; rather, it is sufficie
nt that there was a fair probability—as opposed to a mere possibility—that he would do so.
The court is required by law to consider the fact that the claimant had no legal right to financial support fr
om the deceased if the dependant was not married to the deceased but was residing with him as his wife.

4.6 LOSS OF SUPPORT: THE DEPENDANT’S PROSPECTS.

The Fatal Accidents Act provides an enforceable right to financial support from the deceased, but it also
takes into account the dependant's prospects of remarriage. This has been changed by the Law Reform
(Miscellaneous Provisions) Act 1971, which now does not take into account the widow's remarriage or her
prospects of remarriage. Lord Sumption JSC described the law as "anomalous" in Cox v Ergo
Versicherung AG29

4.7 LOSS OF SUPPORT: THE NEED TO ESTABLISH A LOSS

The loss brought on by the deceased's passing must fall on the dependent.
For instance, if the decedent supported himself and his spouse primarily on the income from assets and tho
se investments pass to the spouse, the latter will not have incurred a financial loss unless the deceased offe
red management expertise that now needs to be replaced.

4.8 LOSS OF SUPPORT: DISTINGUISHED FROM NEED FOR SUPPORT

It's crucial to keep in mind that dependence loss is not the same as need. For instance, If
the claimant, a successful actress who had retired after marrying the affluent decedent, could have continu
ed acting after his death, her claim would still be founded on the fact that she had lost the support she had
been receiving from the deceased.
The dependency is fixed at the time of death; it is the benefit that the dependents would have likely receiv
ed from the decedent had the decedent not passed away.
What people decide to do after that is unimportant.

29
(2014) UKSC 22; (2014) 2 W.L.R 948 at [10]

17 | P a g e DEATH AS A CAUSE OF ACTION

5.0 RELATIONSHIP BETWEEN THE ACTS

Two issues arise when death ensues from a tort. First, the deceased‘s estate may wish to proceed with the
cause of action which the deceased himself would have had if he had not died. Second, others – but
especially relatives may claim that they have suffered a loss as a consequence of the death. Two statutes
need therefore to be examined, these statutes are the Law Reform (Miscellaneous Provisions) Act 1934
(dealing with the survival of actions) and the Fatal Accidents Act 1976 (dealing with death itself giving
rise to a cause of action).

5.1 The Law Reform (Miscellaneous Provisions) Act, 1934

This Act comes into play if either the claimant or the defendant dies before the commencement of
proceedings. The Act enables the personal representatives of the deceased victim to recover such damages
as he might have received had he lived, subject to certain exceptions.

Effect of death on certain causes of action:

Section 1(1) of the Act30 provides that ―on the death of the person all causes of action subsisting against
or vested in him, shall survive for the benefit of his estate.‖ It is noteworthy that Section 1(1) does not
apply to cases of defamation.

Section 1(1A) provides that ―The right of a person to claim for bereavement, under s1A of the Fatal
Accidents Act 1976, below, shall not survive for the benefit of his estate on his death as inserted by the
Administration of Justice Act 1982, s4).‖ Where a cause of action survives under Section 1(1), the
damages recoverable shall not include (i) exemplary damages; or (ii) damages for loss of income in
respect of any period after the deceased‘s death as provided for (s1(2)(a)).

Damages shall be calculated without reference to any loss or gain to the deceased‘s estate, except that
funeral expenses may be included (s1(2)(c)). Thus, for example, the loss of an annuity ceasing on death or
the gain arising from a life insurance policy payable upon death are disregarded. Funeral expenses, as
stated, may be recovered.

Section 1(4) provides that ―Where damage has been suffered in respect of which a cause of action would
have subsisted against the tortfeasor if the tortfeasor had not died before or at the same time as the damage
was suffered, a cause of action shall be deemed to have been subsisting against him as would have
subsisted if he had died after the damage was suffered. For Example, if in the case of Donoghue v
Stevenson31, the manufacturer of ginger wine dies before the claimant had consumed the beer and
suffered from a serious illness, then the claimant's action is preserved under Section 4 of the Act and
therefore, the estate of the deceased can be sued.

30
The Law Reform (Miscellaneous Provisions) Act, 1934
31
[1932] A.C.562; 1932 S.C

18 | P a g e DEATH AS A CAUSE OF ACTION

The rights conferred by this Act are in addition to the rights conferred on the dependants of deceased
persons by the Fatal Accidents Acts (s1(5)). Surviving dependants have their own cause of action for
economic loss which they have suffered as a result of the death of the breadwinner.

5.2 Fatal Accident Act 1976

The Fatal Accidents Act (Lord Campbell‘s Act) was first passed in 1846. The present Act, consolidating
earlier legislation, was itself amended in important respects by the Administration of Justice Act 1982.

Right of action for wrongful act causing death

If death is caused by any wrongful act, neglect or default, and the tortfeasor would have been liable if
death had not ensued, the tortfeasor shall be liable to an action for damages, even though the person
injured has died (s1(1)). Therefore, dependants have no right of action if the deceased himself could not
have sued during his lifetime.

Classes of dependants:

Although an action must be brought by and in the name of the executor or administrator of the deceased
(s2), it exists for the benefit of the dependants of the deceased (s1(2)). Section 1(3) defines ‗dependant‘ as
the wife or husband or former wife or husband of the deceased;

a. a ‗common law spouse‘;

b. any parent or other ascendant of the deceased;
c. any person who was treated by the deceased as his parent;
d. any child or other descendant of the deceased;
e. step-children of a marriage;
f. any person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased.

Section 1(4) deals with annulled, void and dissolved marriages and Section 1(5) provides for illegitimate
persons.

Section 2(2) provides If there is no executor or administrator of the deceased, or no action is brought
within six months after the death by the executor or administrator, the action may be brought by and in the
name of all or any of the persons for whose benefit an executor or administrator could have brought it.

Assessment of Damages:

Such damages may be awarded as proportioned to the injury resulting from the death of the dependants as
stated in section 3(1) of the Act.

The method of assessing damages under the Act was enunciated by Lord Wright:

19 | P a g e DEATH AS A CAUSE OF ACTION

―The starting point is the amount of wages which the deceased was earning, the ascertainment of which to
some extent may depend on the regularity of his employment. Then there is an estimate of how much was
required or expected for his personal and living expenses. The balance will give a datum or base figure
which will generally be turned into a lump sum by taking a certain number of years‘ purchase. That sum,
however, has to be taxed down by having due regard to uncertainties.‖ The House of Lords elaborated
upon this in Taylor v O’Connor32, the damages to a widow must make available to her, to spend each
year, a sum free of tax equal to the amount of the dependency

Section 3(2) states any amount recovered, other than damages for bereavement, shall be divided among
the dependants in such shares as may be directed.

Section 3(4) states in assessing damages payable to a common-law spouse, an account must be taken of
the fact thatdefendantndant has no enforceable right to financial support.

In Cookson v knowles33, the court held that damages for non-economic loss .i.e pain and suffering and
loss of amenities should be assessed on the scale at which such damages were currently being assessed at
the date of trial, but that no interest should be allowed on this part of damages.

Contributory Negligence:

Where the deceased died as the result partly of his own fault and partly of the fault of the tortfeasor, any
damages recoverable in an action under this Act shall be reduced to a proportionate extent as stated in
section 5 of the Act.

Fatal Accident Claims:

Where the victim of an accident caused wholly or partly by the defendant‘s negligence dies as a result of
his injuries, the dependants of the deceased may recover compensation for his death from the defendant
under the following statutes:

a) Fatal Accident Law 1961, Cap.40(Lagos state)

b) Torts Law, Cap.122 (western states)
c) Fatal Accidents Law, Cap.52(eastern states)
d) Fatal Accidents Law Cap.43(northern states)

A preliminary question may arise in a fatal accident claim in Nigeria where the action is in respect of an
accident which occurred in a state other than that of a. Forum, and where different statutes apply in two
states. In Amanambu v Okafor, the widow of a man who was killed in a road accident which took place
near Lokoja in the then Northern region brought an action against the driver of the offending vehicle in the
High Court of the Eastern region on behalf of herself and certain other dependants of the deceased,
claiming for damages under the fatal Accident law of Eastern Nigeria. The Supreme Court held that the

32
18-CV-01476 (LDH) (CLP)
33
[1979] AC 556

20 | P a g e DEATH AS A CAUSE OF ACTION

action must fail since ―in our view, the fatal Accident laws of Eastern Nigeria confers a right to sue for
compensation in respect of a fatal accident which occurred in Eastern Nigeria and not outside it.

6.0 CASE REVIEW

Numerous cases have addressed the issue of death as a cause of action under tort law. For example in
Benham v Gambling (1941) A.C 157 p. 160 which is an English tort law case that deals with the cause
of action for death. The case involved a fatal accident that occurred on a motorway in which a van
collided with a lorry. The van driver, Mr. Benham, was killed in the accident, and his wife brought a claim
for damages under the Fatal Accidents Act.

The court had to determine whether the defendant, Mr. Gambling, was liable for Mr. Benham‘s death and
whether the damages awarded to his wife were appropriate. The court held that Mr. Gambling was liable
for Mr. Benham‘s death as the accident was caused by his negligent driving. The court also held that the
damages awarded to Mrs. Benham were reasonable.

The case highlights the importance of establishing causation in a tort claim for death. The claimant must
prove that the defendant‘s actions caused the death of the victim. In this case, the court found that Mr.
Gambling‘s negligent driving caused the accident that resulted in Mr. Benham‘s death.

The case also highlights the importance of the Fatal Accidents Act in providing a remedy for the
dependents of the deceased. The Act allows for damages to be awarded to the dependents of the deceased
for loss of financial support, loss of services, and loss of consortium.

Overall, Benham v Gambling34 is an important case in the field of tort law, as it highlights the legal
principles involved in a claim for death as a cause of action. The case emphasizes the importance of
establishing causation and the availability of remedies under the Fatal Accidents Act.

Naylor v Yorkshire Electricity Board35 is a landmark case in English tort as well that also has
significant implications for death as a cause of action. The case involved the death of a young boy, David
Naylor, who was electrocuted after climbing a pylon and coming into contact with an overhead power line
owned by the Yorkshire Electricity Board.

The issue before the court was whether the Board had breached its duty of care owed to David Naylor and
whether his death was a foreseeable consequence of the breach. The court held that the Board had
breached its duty of care and that David Naylor‘s death was a foreseeable consequence of the breach.

The case highlights the principle that death can be a cause of action in tort law if it is a foreseeable
consequence of a breach of duty. In this case, the court found that the Board‘s breach of its duty of care
directly led to David Naylor‘s death, which was a foreseeable consequence of the breach.

34
VLEX 792977317
35
(1969) A.C 529

21 | P a g e DEATH AS A CAUSE OF ACTION

The case also demonstrates the availability of remedies for dependents under the Fatal Accidents Act
1976. In this case, David Naylor‘s family was able to bring a claim for damages under the Act for the loss
of financial support, loss of services, and loss of consortium that resulted from his death.

In the case of Jenyo v Akinreti36, The plaintiffs, Raimi Jenyo and another, as the Administrators of the
Estate of Busari Raimi (deceased child) sued the defendants, Akinsanmi Akinreti and another under the
Fatal Accidents Act of 1961 and the Civil Liability (Miscellaneous Provisions) Act 1961 that deals with
the cause of action as death. The case involved a truck driver, an employee of the second
defendant/appellant who drove negligently and hit a child of which the child died, thus the claim for
damages by the parents of the deceased.

In addition to the cases discussed above, there are several other notable cases that have addressed the issue
of death as a cause of action under tort law. For example, in the case of Bataille v. Metropolitan Life
Insurance Co.37, the plaintiff brought a wrongful death action against the defendant's insurance company,
alleging that the company‘s negligence caused her husband‘s death. The court held that the plaintiff had a
valid cause of action and could recover damages for her husband‘s wrongful death.

More recently, in 2020, the family of George Floyd brought a wrongful death lawsuit against the city of
Minneapolis and four police officers involved in Floyd‘s death. Floyd died while being restrained by the
police officers, which sparked nationwide protests and renewed attention to issues of police brutality and
systemic racism in the United States. The family‘s lawsuit alleged that the defendant‘s actions were
responsible for Floyd‘s death and sought damages for his wrongful death. The case resulted in a settlement
between the city and Floyd‘s family, which included a record $27 million payment to the family.

7.0 CONCLUSION:

In conclusion, death can be a cause of action under tort law, and wrongful death claims can arise in a
variety of contexts, including medical malpractice, product liability, and personal injury cases. While the
laws governing wrongful death claims may vary by jurisdiction, most states have specific statutes that
govern the elements of the claim, the types of damages that may be recovered, and the parties who are
entitled to bring the claim.

It is important for individuals and families who have suffered the wrongful death of a loved one to consult
with an experienced attorney to understand their rights and legal options. A wrongful death claim can
provide compensation for the damages caused by the death, including medical expenses, funeral and
burial expenses, lost income, and other damages suffered by the deceased person‘s family members. By
holding responsible parties accountable for their actions, wrongful death claims can also serve as a
deterrent to future wrongful conduct and promote public safety.

36
(1990) NWLR (Pt. 135) 663
37
284 N.Y. 245 (1940)

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