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Unit 16 Death in Relation to Tort

The document outlines the legal actions available when a person dies due to a tort, specifically survival actions by the deceased's estate under the Law Reform (Miscellaneous Provisions) Act and wrongful death actions by dependents under the Fatal Accidents Act. It details the provisions of these acts, including the types of damages recoverable and the limitations on bringing claims. Additionally, it emphasizes the importance of timing and the requirement for dependents to prove their relationship to the deceased to succeed in their claims.

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4 views10 pages

Unit 16 Death in Relation to Tort

The document outlines the legal actions available when a person dies due to a tort, specifically survival actions by the deceased's estate under the Law Reform (Miscellaneous Provisions) Act and wrongful death actions by dependents under the Fatal Accidents Act. It details the provisions of these acts, including the types of damages recoverable and the limitations on bringing claims. Additionally, it emphasizes the importance of timing and the requirement for dependents to prove their relationship to the deceased to succeed in their claims.

Uploaded by

ericksiwiti
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PPTX, PDF, TXT or read online on Scribd
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University of Lusaka

School of Law

Unit 16 – Death in relation to a Tort


Introduction
• When a person dies as a result of D’s tort, two potential actions are available:
1. An action by the person’s estate, under the Law Reform (Miscellaneous
Provisions)Act Cap 74.
• This is a ‘survival action’ whereby the deceased’s estate may bring an action
on behalf of the deceased for the deceased’s own losses
2. An action by the person’s dependents, under the Fatal Accidents Act 1846 to
1908.
• This is a 'wrongful death’ action, whereby the deceased’s dependents may
sue on their own behalf for their loss of dependency.
• The objective of the above Acts is to provide maintenance for those relatives who
have been deprived of maintenance by the death.
An Action by or Against the
Estate of the Deceased
• The Cap 74 Act reversed the harsh position at common law, which stated that the
death of either party extinguished any existing cause of action in tort – actio
personalis moritur cumpersona
• The Act was passed, largely as a result of increasing motor traffic and resulting
accidents, to provide generally for the survival of causes of action in tort.
• Section 2(1) of the Act states that when the deceased dies, all causes of action
vested in him(or subsisting against him) survive for the benefit (or burden) of his
estate;
• But, there are exceptions:
• causes of action for defamation or seduction or for inducing one spouse to
leave or remain apart from the other or to claims for damages on the ground
of adultery.
Cont’d
• It is important to remember that this does not give the estate a cause of action
for death itself. It simply means that the estate may pursue actions existing at
the time of the victims death.
• According to s. 2 (2) of Cap 74, where there is a valid claim for the benefit of the
estate of the deceased, the damages granted shall:
1. not include any exemplary damages;
2. be calculated without reference to any loss or gain to his estate consequent
on his death (if the death was due to the tort), except that a sum in respect
of funeral expenses may be included.
• In this case, damages shall not be calculated by making reference to the
fact that the deceased had maybe prospects of getting a good paying job
(loss) or that the estate has just received a huge funeral grant from the
work place of the deceased (gain).
Cont’d
S.2 (3) You cannot maintain proceedings which were not pending at the death of
the deceased or later than six months after his personal representative took out
representation.
s. 2 (4) is bringing out the fact that where the deceased’s estate is sued by a
claimant, the timing of events is important.
• Under s2 (4), where the deceased dies before or at the same time as the damage was
suffered by C then an action is deemed to have subsisted against the deceased
before his or her death.
• Thus, if on facts similar to those of Donoghue v Stevenson, D, the negligent
manufacturer of noxious ginger beer dies before the ultimate consumer, C, suffers
damage from drinking it, C’s cause of action against D’s estate is preserved as it is
regarded as arising before D’s death
Cont’d
• If the deceased was guilty of contributory negligence the damages are reduced
according to the degree to which he was at fault.
• Damages Recoverable: Claim for reasonable expectation for pecuniary benefit;
future earnings and funeral expenses;
• Note that The rights outlined above conferred by Cap 74 are in addition to and
not in derogation of any rights conferred on the dependants of deceased persons
by the Fatal Accidents Acts, 1846 to 1908, of the United Kingdom.
The Dependents’ Action
• At common law the death of another human being could not be complained of as
an injury - See Baker v Bolton (1808) 170 ER 1033.
• This harsh position was altered by the Fatal Accidents Act 1846 which was
passed as a response to the increasing number of fatalities on railways leaving
family members unsupported when the breadwinner died.
• s. 2 of Fatal Accidents Act 1846, allows the dependants of the deceased person
to recover by way of damages the value of their dependency, which is limited to
the loss of the pecuniary benefit arising from the relationship of the dependants
to the deceased, which they would have enjoyed had the deceased continued to
live.
Cont’d
• To succeed with the claim, the court must be satisfied that the claimant was
dependant on the deceased.
• Only one action is to be brought in the name of a personal representative for
actions surviving for the benefit of the deceased’s estate.
• The action must be brought within three years after the date of death, or the
date of the knowledge of the person for whose benefit the action is brought –s. 4
of The Law Reform (Limitation Of Actions, Etc.) Act
• The action is brought by the personal representative on behalf of the relatives;
but if there is no personal representative or if he does not commence an action
within six months, any relative entitled to the protection of the Acts may sue in
his own name on behalf of himself and the others.
Cont’d
• Further Reading:
• Zambia State Insurance Corporation & ZCCM v Andrew Muchili (1988-89)
Z.R. 149
• Bernard Chilunda v Zakaria Chinanzi (1979) Z.R. 195 (H.C.)
• Henwood v Naoumoff (1966) Z.R. 78 (C.A.)

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