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Death Effect As Tortious Liability

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145 views3 pages

Death Effect As Tortious Liability

Uploaded by

queenomari02
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© © All Rights Reserved
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ANSWERS.

I. DEATH AS A GROUND FOR LIABILITY


This topic entails to address for the death being a ground for liability, in essence that we
then first have to understand the general concept of what death is and how it can be held
as a ground in tort law. According to the Black’s law dictionary 4 th edition, Death refers
to the cessation of life; defined by physicians as a total stoppage of the circulation of
blood in the body1. Due to such definition, in tort law this topic demands to show the
effect of death on tort liability.
Under this topic, the general rule in common law is “Actio personalis moritur cum
persona” (personal cause of action, dies with the person), as it was abolished under The
Law Reform of 1934 in England. But before 1934, at common law a cause of action
against a person died with the person except for contractual obligations which could be
enforced by or against the legal representatives of the parties to the contract and
wrongfully appropriated property which could be claimed against the legal
representatives of the deceased.

In Tanzania, the aspect is governed by The Law Reform (Fatal Accidents Miscellaneous
Provisions Act) that a person who causes a death of another person willfully in
circumstances which would have enabled a dead person to recover damages had death
not occurred shall be held liable as if that person was dead, this entails that all causes of
actions that are against or vested in him survive against or as the case may be for the
benefit of his estate. But also it is of essence that to understand by referring the general
rule that the cause of action does survives regardless of the fact that one of the parties to
the action dies2.

II. SURVIVAL OF CAUSES OF ACTION.


Under this topic survival for the action means that every fact that which would be
necessary for the plaintiff to prove in order to support his claim in the court of law, for
instance a cause of action is the total or sum of the allegations upon which the right to

1
The Black’s Law Dictionary 4th edition pg. 488
2
Principles of law of torts in Tanzania, Mramba S.J. & Mugambila E.A,2020
relief claimed is founded. By citing the case of John Mwombeki Byombarirwa v Agency
Maritime International ltd3 it was stated the expression cause of action is not defined
under the code but it may be taken to mean essentially facts which it is necessary for the
plaintiff to prove before he can succeed in the suit. Due to that in Tanzania scope under
this category it is of essence for the plaintiff to have cause of action against the defendant
because if there is no cause of action the suit will be struck out. Thus, the stronger the
proof provided by the claimant, the higher the cause of action survives.

III. JOINT AND SEVERAL TORT FEASORS.


When two or more breaches of legal duty by different persons result in a single injury to
the plaintiff, then the two or more persons are called joint tort-feasors. Lord Justice
Bankers stated that ‘persons are said to be joint tort feasors when their shares in the
commission of tort are in furtherance of a common design’. These tort-feasors can be
sued together and sued severally for the full amount of the plaintiff’s damages and
usually responsible for the same wrongful act.
In the common law case of Brook v. Bool4, Bool thought and he could smell gas leaking
from the plaintiff’s shop, he then started investigating together with Morris who started
examining part of the part of the gas with naked light which caused explosion
consequently leading to the damage of the plaintiff’s property.
They were both held to be joint tort-feasors since the act which was the immediate cause
of the explosion was their joint act done in pursuit of the concentrated purpose.
In Tanzanian case of Dr. Loy Job Mbwilo v. Richard Mwera Matiku and Icea Lion
General Insurance Co. Ltd5, a woman sued in the RM’s court claiming for compensation
amounting a total of 107,200.000/-from the two defendants for the accident that led to
her husband’s death. The RM’s court’s decision was unsatisfying that the plaintiff
appealed. The court of appeal held that the first and the second defendant are jointly
liable to compensate the appellant for the amount stated here in and the judgement of the
RM’s court is therefore partly quashed to the extent stated herein. The appeal is allowed.
Costs awarded to the appellant.

3
[1983] TLR 1.
4
[1928] 2 KB 528.
5
[2018] CA NO.07

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