Lord Campbell Act

At one time, the families of persons killed due to the

negligence of another could get no compensation.
The common law position was succinctly expressed
in Lord Ellenborough’s ruling in Baker v Bolton in
1808: ‘In a civil Court, the death of a human being
could not be complained of as an injury’.
• There was a parallel rule that when a person
with a cause of action died, their right to
compensation died also: the action did not
survive for the benefit of the estate of a
deceased plaintiff, or against the estate of a
deceased defendant, a rule expressed in the
Latin maxim actio personalis moritur cum
persona.
• 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 Co in 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 lawof negligence that
happened during the 19th century.
The common law: the rule in Baker v Bolton

The case of Baker v Bolton which first pinpointed

the problem of fatal accidents was heard by
Lord Ellenborough C.J. and a jury at
Westminster on December 1808. According to
the law report, the action was brought against
the defendants as proprietors of the
Portsmouth to London stage coach. The
plaintiff and his wife were passengers riding on
the top of the coach when it was overturned
The plaintiff was much bruised, but his wife was so
severely hurt that she died a month later in
hospital. The plaintiff’s declaration stated that ‘the
plaintiff had wholly lost, and been deprived of the
comfort fellowship, and assistance of his said wife,
and had from thence hitherto suffered and
undergone great grief, vexation, and anguish of
mind’. Apart from his personal attachment to her,
the plaintiff’s wife had helped him in his business as
a publican.
• However, Lord Ellenborough told the jury that
they could only take into consideration the bruises
which the plaintiff had himself sustained, and the
loss of his wife’s society, and the distress of mind
he had suffered on her account, from the time of
the accident until the moment of her death. In a
civil court, the death of a human being could not
be complained of as an injury. The jury found a
verdict for the plaintiff with £100 damages.
 In a civil Court, the death of a human being could not be complained of as an injury
injury‘’

• Lord Ellenboroug’s statement as reported by Campbell

could not be briefer. This one-sentence ruling stands
alone, with no justification or elaboration. Over the
years it has come in for much criticism from respected
commentators. Pollock, for example, said it was a
‘barbarous’ rule, and Fleming criticised it as a
misreading of legal history.
.American writers have been even more scathing,
suggesting that it is one of the most criticised
decisions in legal history, that it lacks both
reasoning and historical support, that it has
produced a ‘grotesque anomaly’, and that the path
of English-speaking jurisprudence has been directed
into a quagmire from which only recently has it
begun to escape. Even Prosser, doyen of American
torts scholars, dismissed Lord Ellenborough as a
judge ‘whose forte was never common sense’.
• Some have suggested that there are grounds
of principle to justify it, such as repugnance to
setting a price on human life.
 Effect of the Act
• As enacted, the Fatal Accidents Act was very
simple. It provided that:
• [W]hensoever the Death of a Person shall be
caused by wrongful Act, Neglect, or Default,
and the Act, Neglect, or Default is such as
would (if Death had not ensued) have entitled
the Party injured to maintain an Action and
recover Damages in respect
• thereof, then and in every such Case the
Person who would have been liable if Death
had not ensued shall be liable to an Action for
Damages, notwithstanding the Death of the
Person injured, and although the Death shall
have been caused under such Circumstances
as amount in Law to Felony
• The action was for the benefit of the wife, husband, parent
and child of the deceased, and was to be brought in the
name of the executor or administrator; and it was provided
that ‘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 Actions shall be brought’. Not more
than one action was to lie in respect of the same subject-
matter of complaint, and it had to be commenced within
twelve months of the death. The remaining sections set out
procedural requirements and definitions.
 Present Act is Fatal Accidents Act 1976
Right of action for wrongful act causing death.
(1)If death is caused by any wrongful act, neglect or default which is such as would (if death had not
ensued) have entitled the person injured to maintain an action and recover damages in respect thereof,
the person who would have been liable if death had not ensued shall be liable to an action for
damages, notwithstanding the death of the person injured.
(2)Subject to section 1A(2) below, every such action shall be for the benefit of the dependants of the
person (“the deceased”) whose death has been so caused.
(3)In this Act “dependant” means—

(a)the wife or husband or former wife or husband of the deceased;

(b)any person who—
(i)was living with the deceased in the same household immediately before the date of the death; and
(ii)had been living with the deceased in the same household for at least two years before that date; and
(iii)was living during the whole of that period as the husband or wife of the deceased;
(c)any parent or other ascendant of the deceased;
(d)any person who was treated by the deceased as his parent;
(e)any child or other descendant of the deceased;
(f)any person (not being a child of the deceased) who, in the case of any marriage to which
the deceased was at any time a party, was treated by the deceased as a child of the family
in relation to that marriage;
(g)any person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased.
(4)The reference to the former wife or husband of the deceased in subsection (3)(a) above
includes a reference to a person whose marriage to the deceased has been annulled or
declared void as well as a person whose marriage to the deceased has been dissolved.
(5)In deducing any relationship for the purposes of subsection (3) above—
(a)any relationship by affinity shall be treated as a relationship by consanguinity, any
relationship of the half blood as a relationship of the whole blood, and the stepchild of
any person as his child, and
(b)an illegitimate person shall be treated as the legitimate child of his mother and reputed
father.
(6)Any reference in this Act to injury includes any disease and any impairment of a person’s
physical or mental condition.]
• (1)An action under this Act may consist of or
include a claim for damages for bereavement.
(2)A claim for damages for bereavement shall only
be for the benefit—
(a)of the wife or husband of the deceased; and
(b)where the deceased was a minor who was never
married—
(i)of his parents, if he was legitimate; and
(ii)of his mother, if he was illegitimate.
(3)Subject to subsection (5) below, the sum to be awarded as
damages under this section shall be [F2£10,000].
(4)Where there is a claim for damages under this section for the
benefit of both the parents of the deceased, the sum awarded
shall be divided equally between them (subject to any
deduction falling to be made in respect of costs not recovered
from the defendant).
(5)The Lord Chancellor may by order made by statutory
instrument, subject to annulment in pursuance of a resolution
of either House of Parliament, amend this section by varying
the sum for the time being specified in subsection (3) above.
 Indian Law
• The first legislation in India on this subject was
enacted in 1855. It was called the Legal
Representatives’ Suits Act, being Act XII of 1855. It
was assumed by the Legislature that the maxim
actio personalis moritur cum persona applied in
India, for the preamble to the Act says: “ Whereas
it is expedient to enable executors, administrators
or representatives in certain cases to sue and be
sued in respect of certain wrongs which,
• according to the present law, do not survive to
or against such executors, administrators or
representatives.”
• The Act then proceeds to provide for actions
by the representatives of a deceased person,
and action against the representative of a
deceased person.
• Under Act XII of 1855 an action may be
maintained by the executors, administrators
or representatives of a deceased person for
any wrong committed in the lifetime of the
deceased which has occasioned pecuniary loss
to the estate of such person ( and for no other
wrong), committed within one year before his
death.
• Then came the Indian Succession Act, 1865,
and the Probate and Administration Act, 1881.
Both these Acts contained a section which is
now reproduced as Sec. 306 of the Indian
Succession Act, 1925. The material portion of
that section is as follows;-
• “ All demands whatsoever and all rights to
prosecute or defend any action or special
proceeding existing in favour of or against a
person at the time his decease survive to and
against his executors or administrators; except
causes of action for defamation, assault, as
defined in the IPC or other personal injuries
not causing the death of the party…”
 M. Veerappa v Evelyn Sequeira AIR 1988 SC
506
• There was a controversy whether the words”
personal injuries” refer only to physical
injuries and whether a cause of action for
malicious prosecution,survived to the
reprsentatives of a deceased plaintiff.
• The Supreme court in settling the controversy
in the above case has stated that the
expression
• “ Personal injuries” does not mean ‘ injuries to
the body alone but all injuries to a person
other that those which cause death and the
expression is to be read ejusdem generis with
the words “ defamation” and “ assault” and
not with assault alone.
• So the right of the father to sue for compensation for
the seduction of his daughter is a personal right and
dies with the father. The Supreme Court in Official
Liquidator, Supreme Bank Ltd v P.A. Tendolkar,
pointed out that the application of the maxim was
generally confined to actions for damages for
defamation, seduction, inducing spouse to remain
apart from the other and adultery and that it had no
application to actions based on contract or where a
trespasser’s estate had benefited from a wrong done.
• It was also pointed out that there was no
reason to extend the maxim to cases involving
breaches of fiduciary duties or to the case of a
Director whose personal conduct had been
fully enquired into.
 Klaus Mittelbachert v The East India Hotels
Ltd
• In East India Hotels v. Klaus Mittelbachert (1997 SC)
– a sad story where a pilot dives into badly designed
pool head first, and is rendered a handicap. The
person was a good swimmer and an incident like this
could not have happened but for the faulty design
i.e. negligence of the hotel. The Court put the
burden to disprove negligence (design of the pool)
on the Hotel – which it failed to discharge. It also
failed to prove that the victim was himself negligent
or at least contributed to his injury.