Damages for Wrongful Death: Has Lord Campbell's Act Outlived its Usefulness?
| Date | 01 July 1984 |
| Published date | 01 July 1984 |
| Author | S. M. Waddams |
| DOI | http://doi.org/10.1111/j.1468-2230.1984.tb01660.x |
DAMAGES FOR WRONGFUL DEATH: HAS
LORD CAMPBELL’S ACT OUTLIVED ITS
USEFULNESS?
A
SERIES
of recent English cases has raised, in an acute form, the
problem of the, relationship of the two theories underlying liability
for wrongful death: loss to the survivors, and loss to the estate. It
has generally been assumed that
loss
to the survivors is the preferable
theory. The object of this paper is to explore the alternative theory.
It will be suggested that there are substantial advantages to the
rkgime where only the estate can recover for wrongful death, and
survivors’ claims are against the estate, not against the wrongdoer.
This suggestion is not original. It was made in
1846
during the
Parliamentary debate’ on Lord Campbell’s Act by Sir Frederick
Thesiger, later Baron Chelmsford L.C. The suggestion was again
put forward, though without enthusiasm, in
1981,
in
Gammell
v.
Wilson,*
discussed below.
Before
1846
a tortfeasor could not be made to pay damages for
wrongfully causing a death. Two separate rules supported this result.
The first was that personal actions (with some exceptions) did not
survive to a deceased plaintiff‘s estate. The second rule (the rule in
Baker
v.
Bolton3)
was that a living plaintiff could not sue a living
defendant for the death
of
a third person even where the death
caused financial loss.
The origins and logical foundation of the rule in
Baker
v.
Bolton
are obscure. The case itself was a
Nisi
Prim
decision involving a
husband’s claim for his wife’s death in a coach accident. Lord
Ellenborough is reported as saying simply:
“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 plaintiffs wife must stop with the period of her existence.”
No
reasoning supports the assertion. Lord Ellenborough evidently
assumes that it was settled law.
In
1846
Parliament modified the rule in
Baker
v.
Bolton
by
enacting a statute for the compensation
of
families
of
persons
wrongfully killed. This is Lord Campbell’s Act, or the Fatal Acci-
dents Its effect was to inhibit the development of any common
law right to damages for wrongful death.
In the first case to discuss the rule in
Baker
v.
Bolton, Osborne
v.
Gilleft.’
a father’s action for the death of his daughter. Bramwell B.
I
(1846 87 H.C.Deb.. col. 1365.
[l%2j A.C. 27 (H.L.)
(1808)
1
Camp. 493. See W.
S.
Malone, “The Genesis
of
Wrongful Death” (1965) 17
Stan.L.R. 1043.
‘
9
&
10 Vict. c.93, “An Act
for
compensating the Families
of
Persons
Killed
by
Accidents.” See also Fatal Accidents Act 1976, amended
by
Administration
of
Justice Act
1982.
(1873) L.R. 8
Ex.
88.
437
438
THE
MODERN
LAW
REVIEW
[Vol.
47
put forward very powerful arguments in favour
of
an action at
common law. But his views were rejected by the majority largely on
the ground that the preamble to Lord Campbell’s Act stated firmly
that “no action is now maintainable against a person who by his
wrongful act, neglect or default may have caused the death of
another person.” It seems probable too that the statutory list
of
persons entitled to claim and the statutory procedures and limitation
period inhibited the court from developing a common law action
that would presumably differ from the statute in those matters. The
House
of
Lords confirmed in
1916
that there was no action for
wrongful death apart from Lord Campbell’s Act.6
The rule that personal actions did not survive to a deceased
plaintiff‘s estate, though subjected to almost universal criticism,
lasted, in England, until
1934,
when the Law Reform (Miscellaneous
Provisions) Act provided that (with certain exceptions) all actions
survived to the estate, adding that the rights given by the Act were
“in addition to and not in derogation
of
any rights conferred on the
dependants of deceased persons by the Fatal Accidents Acts.”’ The
courts thus had to deal after
1934
with two separate actions against
a wrongdoer for the death
of
a person, one by the statutory claimants
under Lord Campbell’s Act, the other by the deceased person’s
estate under the
1934
Act. Often the claimants under Lord Camp-
bell’s Act were identical with the beneficiaries
of
the estate, and in
those cases double recovery was avoided by the rule that in calcu-
lating a claimant’s
loss
under Lord Campbell’s Act credit had to be
given for benefits received from the estate.8 Where the claimants
and beneficiaries were different, no serious problem
of
overlap arose
.
because it was held by the Court
of
Appeal in
1961
in
Oliver
v.
Ashman’
that an injured plaintiff suing on his own behalf, whose life
was shortened by the defendant’s tort, could not recover income lost
during the period
of
the shortening
of
his life. Thus if a person’s
working life were reduced from
40
years to two years, he could not
recover lost income in respect
of
the
38
“lost years.” It followed that
if he were killed instantly
(i.e.
his life expectancy were reduced to
nil) no action for lost earnings would survive to the estate. The only
action was assumed to be under Lord Campbell’s Act if there were
eligible claimants.
The rule in
Oliver
v.
Ashman
has a certain logical attraction.
Many would say instinctively that a person cannot be said to suffer
a financial
loss
during a period when he will not be alive to enjoy
the use
of
any compensation that might be awarded for lost earnings.
However. this view would lead also to the denial of recovery in the
~~
Admiralty Commissioners
v.
S. S.
Amerika
[I9171 A.C. 38.
24
&
25
Geo.
5,
c.41,
ss.l(l),
l(5). Ontario had acted as early as 1886. See Statute
Amendment Act 49 Vic. c.16, s.23, amending the Trustees and Executors Act
R.S.O.
1877, c.107,
ss.8,
9.
*
Davies
v.
Powell Duffryn Associared Collieries Ltd.
[1942] A.C.
601.
See now Admin-
istration
of
Justice Act, 1982, s.3(1). amending s.4
of
the Fatal Accidents Act 1Y76.
(19621 2
Q.B.
210.
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