Death in relation to Tort

Death in relation to Tort

Author : Gouri Kailash


 A Tort is a civil wrong other than breach of contract which leads to legal liability. Under tort the person to whom the wrongful act is done can claim damages, they are usually monetary damages. The wrongful act may include a person causing intentional bodily harm, financial losses, mental stress etc.

Tort can be compared to both criminal law as well as law of contract. In cases of assault or battery the injured person can claim compensation either under tort or criminal law.

The law of contract and law of torts are similar in the sense that there is a breach of duty in both cases. Under both the injured party has to prove that he has suffered losses because of the wrongful act of the other in case of law of torts and breach of contract in case of law of contracts.

The person who does the wrongful act is called the tortfeasor and the person to whom the wrong has been done is the injured party.

The topic death in relation in torts can be studied under two heads

  • How does death of a person affect cause of action that arises?
  • Is causing of death actionable in tort?

How does death of a person affect cause of action that arises?

Actio personalis moritur cum persona

It means when the person dies his personal right of action also dies.

It basically means that when either of the party dies it destroys the personal right of action associated with it.

Case Law :

Balbir Singh Makol vs Chairman, M/s Sir Ganga Ram Hospital

Facts :

In this case the complaint was filed by the parents of Manpreet Singh Makol who is said to have died by a medical blunder which was committed by Dr. JS Makhani who was a senior orthopaedic consultant of Sir Ganga Ram Hospital.According to the complainant his son was osteosecoma patient and a tumor was suspected. The complainant approached Dr. Makhani for a second opinion on the advice of Dr MP Singh. Bone grafting procedure was done on the patient while they were waiting for his autopsy report. Later it was found there was no such disease and an amputation was done. The patient died the next day. While the proceedings were going on it was found that Dr Makhani passed away and they cannot sue against the legal heirs.

The court held that in tort under medical negligence the cause of action is personal i.e against the person who was negligent. Therefore the legal heirs cannot be held responsible.

However if the court had passed a judgment then the legal heirs would have been liable to pay the damages. Here the defendant passed away during the proceedings and no judgment had been taken therefore the legal heirs are not liable to pay compensation.

Now there are certain exceptions to this maxim:

Firstly, this maxim is not applicable to action under contract that is the legal representatives will be liable for an action under contract. However if the contract is for a personal obligation then the legal representatives shall not be liable.


A entered into a contract with B to do a dance performance on particular day but before the contract could be completed A passed away. In such a case B cannot sue the legal heirs of A for breach of contract.

Secondly, if a person had appropriated a property of another before his death then the person to whom the property actually belonged has the right to its claim. The legal representatives will be liable in such a case.

Law Reforms Miscellaneous Reforms Act, 1934

This Act revoked the maxim and therefore the cause of action remains even if the either of the party dies.

According to Section 1(1) of this Act even on the death of the person the cause of action which was vested on him will pass onto his heirs.

There was an exception to this i.e no cause of action could arise in case of defamation against a deceased person because defamation is personal and it cannot exist for a deceased person.

When the heirs of the deceased brings a cause of action against the wrongdoer, it must be proved that the cause of action was vested on the deceased at the time of his death.

Similarly when there is a cause of action against the deceased heir sued by claimant, time plays an important factor.

Administration of Justice Act, 1982

This Act excluded the Law Reforms (Miscellaneous Provisions) Act, 1934

It shall not include:

  • Any exemplary charges.
  • There will no damages awarded for loss of income for any period after death.

Is causing of death actionable in Tort?

Position In England

Fatal Accidents Act, 1976

The Fatal Accidents Act, 1846 came into effect for the relatives of the deceased persons so that they can claim damages. The Fatal Accidents Act, 1976 repealed the earlier legislation.

Dependency Claim

The persons who are entitled to bring action are:

  1. The deceased person’s executor or administrator.
  2. If there is no executor or administrator or if no action is brought about within six months then all those persons or person who would have benefitted had there been an executor or administrator can bring about an action.

Under this Act only certain people in whose favor such Act can be recognized. They are:

  • The deceased person’s husband/wife or former husband or wife.
  • Any of the parents
  • If the deceased person has treated any person as his/her parent.
  • Any child or descendent of the deceased.
  • A person who was treated as a child of the deceased by the family.

Bereavement Claim

Under this section of the Act, the damages can be awarded for mental distress as well.

The persons who are entitled to such claim are:

  • Wife or husband of deceased.
  • If deceased was a minor his/her parents.
  • An illegitimate unmarried child’s mother.

Assessment of Damages

The damages will be awarded proportionate to the injury resulting from the death to the dependents.

In order to ascertain the damages it is necessary to look into the likely benefits of the dependent had the deceased been alive. The prospects of the dependent shall also be taken into account before assessing the damages.

Disregard of benefits

 While assessing the damages the benefits which  a person would have received from an estate or property shall be disregarded.

Contributory negligence

When a person has died partly because of his negligence and partly because of the wrongdoer’s actions the damages will be reduced to a proportionate extent.

Position In India

The position in India is similar to that in England. Under Section 1A of Fatal Accidents Act, 1885 when death of a person is caused by negligence or any wrongful act it is actionable and such an action will be for the benefit of the husband, wife, child or parent.

An action by the brother or sister is not maintainable as they do not come under the term legal representatives according to this section of the Act.


Earlier under English rule there will be no cause of action against a person who is dead. However, today the legal heirs can bring about a cause of action. Also the legal representatives will in certain cases be held liable for the actions of the deceased.

If the legal representatives of the deceased prove that the person died due to the wrongful act of the other then they can claim special damages along with general damages.