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FREE BOOK CHAPTER: Historical Background to the Present Legislation (From 'A Practical Guide to Claims Arising from Fatal Accidents' by James Patience)

1.1 INTRODUCTION

In this chapter the development of the current statutory framework for damages for wrongful death is examined. The current statutory framework is summarised.

1.2 THE HISTORIC COMMON LAW POSITION

In the past there was no right of action in tort in English law which enabled a claimant to recover damages for the wrongful death of another1.

The origin of this position at common law can be traced to the case of Baker v Bolton2 which was determined in 1808. This case concerned the death of the plaintiff’s wife in a coach accident. The portion of the claim that was concerned with damages flowing from the death of the plaintiff’s wife, failed. Lord Ellenborough summarised the position at common law as it was at the time:

In a civil Court, the death of a human being could not be complained of as an injury; and in this case the damages, as to the plaintiff’s wife, must stop with the period of her existence.

Before the decision in Baker it is difficult to identify a clear authority for this proposition. The principle enunciated by Lord Ellenborough was subsequently confirmed by the Court of Appeal in Admiralty Commissioners v SS Amerika3.

Subsequent decisions demonstrate that this rule was absolute. It was not possible in the case of Baker for a husband to recover damages for the death of his wife; neither was it possible for a parent to recover damages for the death of their child,4 nor an employer for the death of his employee5.

In addition to the “rule from Baker v Bolton”, with a very few exceptions6, the maxim of actio personalis moritur cum persona (a personal action dies with the person) also operated.

1.3 LORD CAMPBELL’S ACT

The combination of the rule from Baker v Bolton and the maxim of actiopersonalis moritur cum persona created a position which was unsatisfactory. The situation was such that if a person were injured through a tort, the wrongdoer would be liable for causing the injury but if that person were killed through the same tort there was no liability. There was a very limited exception to this position whereby the deceased’s estate had available to it an action in contract7 but this was of limited use.

As a result of the increase in fatal accidents on England’s developing rail network parliament acted to correct this position by enacting a statute8. The Fatal Accidents Act 1846, popularly known as “Lord Campbell’s Act” (which was enacted in the face of some opposition from the railway industry) gave the right to personal representatives of the deceased to bring a legal claim for damages on behalf of the husband, parent, or child of the deceased.

1.4 CONSOLIDATION AND REFORM TO THE PRESENT DAY

The Law Reform (Miscellaneous Provisions) Act 1934 amended the law further so that if the injured person survived for any period of time and had a right to sue for injury, this right was preserved on death and could be pursued by the estate of the deceased.

Over the years the Fatal Accidents Act 1846 was amended and eventually consolidated in the Fatal Accidents Act 19769. The Fatal Accidents Act 1976 itself was amended by the operation of the Administration of Justice Act 1982 which expanded the categories of individuals entitled to claim for damages.

The Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934 constitute the framework of statutory law that gives rise to awards of damages in relation to fatal accidents today. Each act gives rise to different considerations which are considered in detail below.

1.5 SUMMARY

In summary:

  1. Historically, at common law, there was no right of action which enabled a claimant to claim damages for the wrongful death of another;

  2. Because of an increase in deaths on England’s developing rail network this position was altered by the 1846 Fatal Accidents Act – “Lord Campbell’s Act”;

  3. The 1846 Act was followed by a number of consolidating acts culminating in the current statute – the Fatal Accidents Act 1976;

  4. The Law Reform (Miscellaneous Provisions) Act 1934 amended the law so that if the injured person survived for any period of time and had a right to sue for injury, this right was preserved on death and could be pursued by the estate of the deceased.

James Patience
Atlantic Chambers

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1At Scottish law the Court could grant a solatium to the bereaved family for grief.

2(1808) 1 Camp 493

3[1917] A.C. 38

4Clark v London General Omnibus Co [1906] 2 K.B. 648

5Osborn v Gillett (1873) L.R. 8 Ex 88

6Exceptions to this rule arose where the deceased had appropriated property. In these circumstances the rightful owner of the property could maintain an action against the deceased’s estate.

7See Jackson v Watson & Sons [1909] 2 K.B. 193 where a wife died from food poisoning from food purchased by her husband. The husband successfully recovered, in a claim for breach of contract, for the loss of her services.

8Hansard 21 August 1846, Vol 88, col 926

9There were further Fatal Accidents Acts in 1846, 1908 and 1959.

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