THE PRESUMPTION OF DEATH: A REDUNDANT CONCEPT?
| Published date | 01 September 1981 |
| Date | 01 September 1981 |
| Author | D. Stone |
| DOI | http://doi.org/10.1111/j.1468-2230.1981.tb02458.x |
THE
PRESUMPTION
OF
DEATH:
A REDUNDANT
CONCEPT?
THE
accepted view is that there is
a
presumption of death.
The
presumption is a
“
rule of law (which) operates,
so
that the fact
of
absence for seven years unheard of is to be taken by rule of law
independent of the jury’s belief, as equivalent to death.” That is,
in the absence of evidence to the contrary, the presumption compels
a
finding of the fact of a person’s death once certain prescribed
facts are established to the court’s satisfaction.
The purpose of this article
is
to suggest that in contemporary
English litigation the presumption of death has little,
if
any,
practical effect. Indeed, in this context, it is difficult to see that
the concept serves any purpose at all.
1.
EVOLUTION
Where a man disappears and is unheard
of
for
a
long period he
may, or may not, be dead. In the eighteenth and early nineteenth
centuries the world was
a
much larger place than it
is
today. The
courts recognised that in the poor communications of the times
disappearance did not necessarily suggest death. Accordingly there
was
a
presumption of continuance of life. Life was deemed to
continue unless there was evidence adduced to the contrary. In
Benson
v.
Olive3
a deposition of
a
witness taken
60
years before
trial was rejected, there being no proof of the deponent’s death.
At this stage long absence merely went to rebut the presumption
of
continuance of life. It was evidence from which the jury might
infer the fact of death-mere circumstantial evidence of that fact.
In
Doe
d.
George
v.
Je~son,~
Ellenborough
C.J.
thought that seven
years’ absence abroad was “fair ground for the jury to presume
that (the propositus) was dead at the end of the seven years.”
Similarly in
Lloyd
v.
De~kin,~
the jury was permitted to infer
death from fourteen years’ absence. Thus in
Twyning’
Bayley
J.
held that
“
the cases cited
(Doe
d.
George
v.
lesson; Hopewell
v.
De Pinna)
merely show when the presumption of life ceases.”
As the nineteenth century progressed the steam age radically
1
Cross
on
Evidence
(4th ed., 1974), pp. 124
et
seq.; Wills
on
Evidence
(3rd ed.,
1938), pp. 51
et
seq.;
Best
on
Evidence
(12th ed., 1922), pp. 348 et
seq.;
Taylor,
The
Law
of
Evidence
(11th
ed.,
1920), pp. 189
et seq.;
Thayer,
Preliminary Treatise
on
the Law
of
Evidence
(1898), pp. 312
et
seq.;
Wigmore,
Evidence
(3rd ed., 1940).
Vol. IX,
ss.
2530
et seq.
2
Wigmore,
ibid.
s.
2489.
3
(1732) 2
Str.
920. See
also
Smartle
V.
Penhallow
(1703) 2 Ld.Raym. 994, 999.
Manby
v.
Curtis
(1815)
1
Price 225.
Cf.
Jones
v.
Kalker
(1733) 2 Gwilliam 847;
Rowe
V.
Hasland
(1762)
1
Black
W.
404.
4
(1805) 6 East 80.
5
(1821) 4 B.
&
A.
432. See also
Hopewell
v.
De Pinna
(1809)
2
Camp. 112.
6
(1819) 2
M.
&
W. 394.
516
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