This article is written by Preeti Bafna doing BBA L.L.B from Unitedworld School of   Law, Karnavati University.

The claim for compensation is usually brought by the person who has sustained the injury against the person who is responsible for such injury. The topic can be studied under two broad heads:

  • How does the death of one of the parties affect the cause of action
  • Secondly, How far is causing death actionable in tort.


The event of death of a party raises two kinds of question in the law of torts, 

(a) If the wrongdoer, does a cause of action which had already accrued before death survive?

 (b) Does the act causing death give rise to a cause of action?

Effect of Death on the Subsisting Cause of Action

According to English common law, no cause of action arises against the person who is dead. This rule was contained in the maxim “Actio personalis moritur cum persona”, the cause of action dies with the person, and thus, if any of the parties die, cause of action comes to an end.

The application of the maxim in India can be seen in the case of:

Balbir Singh Makol v. Chairman, Sir Ganga Ram Hospital: A complaint was filed by Balbir Singh Makol against the surgeon alleging that his son died because of the blunder committed by the surgeon. While the proceedings were going on, the Surgeon died. The National Commission of India applied the maxim Actio personalis moritur cum persona” and held that with the death of the surgeon the cause of action has also come to an end and therefore, the legal heirs of the surgeon cannot be made liable for the same.

Exception of the maxim “Actio personalis moritur cum persona”

  1. Action under Contract: The maxim does not apply to the cases where an action is brought under the law of contract, therefore the legal representatives of the person can be made liable for the performance. However, if the contract entered into is a contract of personal service, then the legal representatives would not be liable for the performance. Thus, for example, there is a contract with A for singing on a particular event and meanwhile, A dies, then the representatives of A cannot be made liable for the performance.
  • Unjust enrichment of tortfeasor’s estate: If someone, before his death has wrongfully appropriated the property of another person then the person whose property has been appropriated does not lose his right to bring an action against the representatives of the deceased and recover the property. The rationale behind it is that, only the thing actually belonged to the deceased can be passed to his representatives.

Death as Giving Rise to a Cause of Action

 The second question relates to death as furnishing a cause of action. The common law had an irrational rule which barred any claim by the dependents of the deceased victim of a tort which had caused death. It is in the context of this issue that several questions have arisen, including the important question how compensation is to be assessed under the Act of 1855.

Rule in Baker v. Bolton

The rule causing the death of a person is not a tort was lay down in the case of Baker v. Bolton, and therefore known as the rule in Baker v. Boulton. In Baker v. Bolton the plaintiff was held entitled for injury to himself and also the loss of wife’s society and distress, from the date of the accident till her death but not for any loss caused after death.

Exception to the rule in Baker v. Bolton

However, there are certain exceptions available to the rule in Baker v. Bolton which are discussed below:

  • Death due to breach of contract:  Although, causing the death of the person is not actionable under the law of tort but if the death is the result of the breach of contract then the fact of death can be taken into account to determine the damages payable on the breach of Contract.

 Jackson v. Watson

In this case the Plaintiff purchased a tin of Salmon from the defendants. Wife of the plaintiff died because of the consumption of salmon supplied by the defendants. It was found that the contents of the Salmon were injurious to health. It was held by the court that there was a breach of contract as the defendant has failed to supply the goods safe for consumption and hence, the plaintiff was held entitled to claim compensation for the loss of service of the wife due to her death.


Earlier, the common rule was, smaller injuries fall within the purview of civil law and not the death of a person. But now, if the legal representatives of the deceased prove that the death was the direct cause of defendant’s tort, they would be entitled to special damages along with general damages.

Under English common rule, no cause of action arises against the person who is dead. However, the situation is quite different today, and the legal representatives are entitled to bring a legal action in a court of law. Similarly, the legal representatives of the deceased can be made liable in certain cases.

The rule in Baker v. Bolton has become outmoded and it is hoped that this outmoded rule will be discarded and the liability for the consequences of the death will be recognized either by some legislative actions or judicial pronouncements.

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