Death in Relation to Torts

In civil cases, the view is that the successor is still liable or has the right. As a result, the injured party's heirs may file a lawsuit or continue the case after his death. The defendant's legal representative also becomes liable.

Tort Law: What is It?

The field of law that deals with the majority of civil lawsuits is tort law. With the exception of contractual conflicts, most claims that come before a civil court fall under the purview of tort law. The goal of tort law is to right a wrong that has been done to a person and to protect them from the wrongdoings of others. Usually, this is done by compensating the victim with money damages. The original purpose of tort law was to fully compensate victims of harms that could be shown. Contract law applies to lawsuits regarding contracts. According to tort law, persons judged responsible for another person's injuries must make up for their losses. Such harms include paying for medical expenditures, paying for pain and suffering, and losing past or future income.

Analysis of Death in Relation to Torts

There are different points which can be elaborated in order to understand the concept of death in relation to torts.

  • Death of the plaintiff or person wronged

The leading case is Rose V. Ford.

A 23-year-old woman named G was gravely hurt in an accident that was negligently caused by D. She received care and was admitted to the hospital. Her legs were severed two years later. She died four days later. Her mother filed a claim against D based on service loss (ii), pain and suffering (iii), and diminished life expectancy (iii). It was decided that P had a case to file. D was found guilty of the aforementioned three offenses. Expenses were paid for each count.

Rule in Bake v. Bolton

Plaintiff P was riding on top of D's stagecoach with his wife W. D's carelessness caused the coach to topple. W and P both had serious injuries; a month later, W passed away. According to the ruling, P might receive compensation for bruising and for the services his wife provided before she passed away.

Death of the Wrongdoer

At common law, no action could be brought, but the Law Reforms Act of 1934 eliminated this. In India, a lawsuit may be brought up against the deceased defendant's executors, heirs, or legal representatives. The action must be taken within the one-year statute of limitations. According to the general rule, if a lawsuit is brought against a defendant and he passes away while it is pending, the lawsuit ends and cannot be pursued against the defendant's heirs or other legal representatives. This includes legal actions for slander, libel, false imprisonment, assault, battery, etc. Others might let the case go on.

Effect of Death on the Subsisting Cause of Action

English common law states that there is no right of action against a deceased person. This concept was encapsulated in the adage "Actio personalis moritur cum persona," which means that a cause of action ends when one of the parties passes away.

In the case of Balbir Singh Makol v. Chairman, Sir Ganga Ram Hospital, the maxim was used in India. Balbir Singh Makol filed a case against the surgeon, claiming that the mistake the physician made caused his son to pass away. The surgeon passed away while the hearings were ongoing.

The National Commission of India adopted the adage "Actio personalis moritur cum persona" and determined that because the cause of action ended with the surgeon's passing, the surgeon's legal successors could not be held accountable for it.

Exceptions to the maxim "Actio personalis moritur cum persona."

Contractual Action

As the maxim does not apply when a contractual action is brought, the person's legal representatives may be held accountable for the performance. Nonetheless, the legal representatives would not be responsible for the execution if the agreement was a contract for personal service. Hence, for instance, if a contract exists with A for singing at a specific event and A passes away in the interim, the representatives of A cannot be held responsible for the performance.

Unjust enrichment of the Tortfeasor's Estate

If someone illegally usurped another person's property prior to his death, that person does not forfeit his ability to file a claim against the deceased's representatives and recover the property. The justification for this is that only items that were truly owned by the deceased could be given to his representatives.

Death as Giving Rise to a Cause of Action

The second query concerns whether or not death provides grounds for legal action. The common law had an absurd rule that prohibited the dependents of a deceased victim of a tort from bringing a claim. Many inquiries have been raised in relation to this matter, including the crucial query of how compensation is to be determined in accordance with the Act of 1855.


In the past, it was generally accepted that minor injuries and not fatalities were covered by civil law. The legal representatives of the deceased would now be entitled to special damages in addition to general damages if they could show that the defendant's tort directly caused their loved one's death. The common law of England states that a deceased person cannot be sued.

Today's circumstance, however, is very different, and the legal counsel has the right to file a lawsuit in a court of law. Similar to this, in some circumstances, the executors or administrators of the decedent may be held accountable for their conduct or judicial rulings. It is hoped that the outdated rule in Baker v. Bolton will be abandoned and that responsibility for the death's effects will be acknowledged either by legislative action or judicial rulings.


Q1. What is it known as when someone dies as a result of carelessness?

Ans. When someone is killed as a result of the carelessness or wrongdoing of another person or group, this is known as a "wrongful death." A wrongful death lawsuit is a civil case that is different from any criminal charges, even though there may be a criminal investigation into the incident that resulted in the death.

Q2. How does the Baker v. Bolton judgment affect tort law?

Ans. In his ruling in Baker v. Bolton, Lord Ellenborough held that "in a civil court, the death of a human being cannot be complained of as an injury." This statement became the basis for common law.

Updated on: 17-Mar-2023


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