Discharge of Torts — Death, Limitation, Waiver, Accord, Release

A tort claim, like any other civil right, is not perpetual. The law recognises a small set of events that close a tort action short of a final adjudication on the merits. They go under the umbrella of "discharge of torts" and they include the death of a party, the expiry of the limitation period, waiver by election of an alternative remedy, accord and satisfaction, and release. Each operates on a different stage of the action, and each has acquired its own apparatus of cases and exceptions. This chapter covers all five.

The map matters because each mode of discharge serves a different purpose. Death raises the question whether the cause of action survives at all. Limitation imposes a time-bar on enforcement. Waiver gives the plaintiff a choice between concurrent remedies. Accord and satisfaction translate a settlement into a substantive bar on further action. Release extinguishes the right by the plaintiff's own consensual act. The chapter sits in the broader Law of Torts notes on the life-cycle of a tort claim, between the chapter on the joint and several liability of tortfeasors and the chapter on judicial and extra-judicial remedies.

Actio personalis moritur cum persona — the death rule

The starting point in the Common Law is the maxim actio personalis moritur cum persona — a personal cause of action dies with the person. If either the plaintiff or the defendant died before judgment, the tort claim came to an end. The maxim was applied to torts of every kind, however well-founded the claim and however far the litigation had progressed.

The application of the rule in modern Indian practice is illustrated by the National Consumer Disputes Redressal Commission's decision in Balbir Singh Makol v. Sir Ganga Ram Hospital, [(2000) 2 CPJ 24 (NCDRC)]. A complaint had been filed against a surgeon whose blunder resulted in the death of the complainant's son. While the complaint was pending, the surgeon himself died. The Commission applied actio personalis moritur cum persona and held that with the death of the surgeon the right of action came to an end and the surgeon's legal heirs could not be held liable.

A more striking application appears in East India Hotels Ltd. v. Klaus Mittelbachert, AIR 1999 Del 100. A German co-pilot, gravely injured by diving into the defectively-designed swimming pool of a five-star hotel in New Delhi, had been awarded Rs. 50 lakhs as compensation by a single judge of the Delhi High Court (the case is sometimes cited as a landmark application of absolute liability to non-industrial settings). On appeal, while the appeal was pending, the plaintiff died. The Division Bench held that the plaintiff's suit abated on his death, his legal representatives had no right to pursue the case, and the earlier compensation order was reversed. The case is the cleanest modern Indian illustration of actio personalis defeating an otherwise meritorious claim.

Common Law exceptions to actio personalis

Two equity-based exceptions had developed at Common Law before any statutory intervention.

1. Action under contract. The maxim did not apply to actions on a contract. Contractual obligations could be enforced by or against the legal representatives of the parties. Sections 37 and 40 of the Indian Contract Act, 1872 contain the same principle, with an exception for contracts involving personal skill or service such as the painting of a picture.
2. Unjust enrichment of the tortfeasor's estate. If a person, before his death, wrongfully appropriated the property of another, the law refused to allow the wrongful gain to pass to his legal representatives. The injured party could pursue the estate to recover the property or its value. Sherrington's Case, (1606) Cr Eliz 731, allowed an action against the executors of a deceased who had wrongfully removed one hundred oak trees and twenty oxen from the plaintiff's land.

These exceptions remain part of Indian common-law analysis and are routinely cited where there is no statutory survival provision in point.

Statutory abrogation — the English Act of 1934 and the Indian Section 306

The English Common Law rule was abrogated by the Law Reform (Miscellaneous Provisions) Act, 1934. Section 1(1) provides that "on the death of any person ... all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of his estate." The 1934 Act recognised one residual exception — a cause of action for defamation continues to die with the parties.

The Indian provision is older. Section 306 of the Indian Succession Act, 1925 (re-enacting the position under the Legal Representatives' Suits Act, 1855 in revised form) provides:

Three points of construction are tested in objective papers. First, the rule is one of survival, not creation — Section 306 keeps an existing cause of action alive but does not generate a new one in favour of dependants. Second, the exception for defamation, assault and "other personal injuries" carves out from survival those torts whose redress is unavoidably personal to the party injured. Third, the exception for cases where the relief would be nugatory after death covers actions for an injunction or specific restitution that no longer make sense once the party has died.

The High Courts have divided on the meaning of "other personal injuries" in Section 306. The Calcutta and Rangoon High Courts have read the phrase narrowly as meaning physical injuries only, with the result that a cause of action for malicious prosecution survives to the legal representatives. The Madras, Bombay, Patna and Allahabad High Courts have taken the wider view that personal injuries include injuries to reputation and other non-physical injuries, with the result that a malicious-prosecution suit abates on the death of either party. The conflict remains unresolved in the Supreme Court.

Shortening of the expectation of life — the head of damage that survives

A linked question is whether the head of damages for the shortening of the expectation of life survives. The action for shortening of life was first recognised in Flint v. Lovell, [1935] 1 KB 354, where the plaintiff aged sixty-nine, otherwise active, was so injured that his life expectancy was reduced to one year. The Court of Appeal allowed compensation. The House of Lords in Rose v. Ford, [1937] AC 826, held that the cause of action for shortened life-span survives, allowing the father of a girl killed four days after the accident to recover for her benefit.

The Indian application is in Gobald Motor Service Ltd. v. Veluswami, AIR 1962 SC 1, where the Supreme Court awarded Rs. 5,000 as damages for loss of expectation of life arising from a motor accident in which the deceased was severely injured and died three days later. The award is small by today's standards, but the principle that loss-of-life-expectancy damages survive under Section 306 is firmly settled.

Causing death — the rule in Baker v. Bolton and the Fatal Accidents Acts

Distinct from actio personalis is the question whether causing the death of a person is itself an actionable wrong in tort. The Common Law answer in Baker v. Bolton, (1808) 1 Camp 493, was that "in a civil court, the death of a human being could not be complained of as an injury." If A dies because of X's negligence, A's wife and children — though their loss is real — cannot sue X for it at Common Law.

Statute has done the work that the Common Law refused to. In England the Fatal Accidents Act, 1846 (Lord Campbell's Act) gave dependants a statutory right of action; the present law is in the Fatal Accidents Act, 1976 as amended by the Administration of Justice Act, 1982. Section 1(1) of the 1976 Act provides that "if death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured."

In India the corresponding provision is Section 1A of the Fatal Accidents Act, 1855. The connection to the underlying analysis of the essentials of tort — wrongful act, legal damage and legal remedy — is direct: the Fatal Accidents Act creates a statutory legal damage where the Common Law refused to recognise one. The list of dependants entitled to claim compensation in India remains narrow — wife, husband, parent and child — and the brother of the deceased is not a legal representative within the meaning of the Act. The 1855 list was copied from the original 1846 English Act and has not been enlarged in India, although the list in England has been considerably broadened by successive amendments.

For the larger picture of fatal-accident damages — the multiplier method, the multiplicand, and the role of General Manager, Kerala SRTC v. Susamma Thomas, AIR 1994 SC 1631 — the chapter on damages takes the analysis to the next level. The point for present purposes is only that the Fatal Accidents Act creates a fresh cause of action in favour of dependants; it is not a survival statute. Section 306 governs survival; Section 1A governs causing death.

Limitation — the time-bar on tort actions

The Limitation Act, 1963 prescribes the period within which a tort suit must be filed. The Act does not extinguish the substantive right; it bars the remedy. Section 3 makes the time-bar a peremptory rule that the court must apply even if not pleaded.

The principal articles relevant to tort actions are these:

• Article 72. For compensation for any wrongful act resulting in personal injury, the period is one year from the date of the act.
• Article 73. For compensation for false imprisonment, the period is one year from the date when the imprisonment ended.
• Article 74. For compensation for malicious prosecution, the period is one year from the date when the plaintiff was acquitted or the prosecution otherwise terminated.
• Article 75. For compensation for libel, the period is one year from the date of publication.
• Article 76. For compensation for slander, the period is one year from the date of utterance.
• Article 77. For compensation for loss of service occasioned by the seduction of a servant or daughter, the period is one year.
• Article 113. The residuary article applies to torts not otherwise provided for, with a period of three years from the time when the right to sue accrues.

The Motor Vehicles Act, 1988 contains its own special regime: claims under Section 166 must be made within six months of the accident, although Section 166(3) (after amendment) and the Tribunal's discretion under earlier law have generally been read in favour of admitting late claims on sufficient cause shown. The common-law analysis on continuing wrongs (a continuing nuisance, a continuing trespass) is that limitation runs from each fresh act of nuisance or each day of trespass, not from the original incursion — an important point in actions on private nuisance.

Waiver of tort

In certain cases the injured party may elect not to sue in tort and instead sue in quasi-contract to recover the value of the benefit obtained by the wrongdoer. The election to abandon the tort remedy in favour of the alternative is called "waiver of tort". The classical formulation is in United Australia Ltd. v. Barclays Bank Ltd., [1941] AC 1, where the House of Lords held that the plaintiff is required to elect only at the stage of judgment, not before.

The torts that may be waived are those that produce a benefit to the wrongdoer capable of valuation in money — conversion, trespass to land or goods, deceit, and the action for extorting money by threats. The torts that cannot be waived are those that produce no measurable benefit to the wrongdoer — defamation and assault are the standard examples. The election is a creature of pleading rather than substantive law; the plaintiff who has framed his claim as a quasi-contractual demand for money had and received cannot then abandon it and sue in tort, and vice versa, once judgment is entered.

The doctrine has practical bite in cases where the wrongdoer has gained an advantage that exceeds the plaintiff's loss. Where a fiduciary has wrongfully sold the plaintiff's goods at a profit, the action in conversion would yield only the plaintiff's loss, but the waiver of tort and the action in quasi-contract for money had and received would yield the gain. The reading also connects to the chapter on the distinction between tort, contract and quasi-contract.

Accord and satisfaction

Accord and satisfaction is the contractual mode of discharge. "Accord" is the agreement by which the obligation is to be discharged; "satisfaction" is the consideration that makes the agreement operative. The two together extinguish the cause of action.

Three propositions govern the doctrine in tort:

1. Both elements are required. A bare agreement to accept some payment in lieu of the claim is not accord and satisfaction; the payment (or its substitute) must actually be tendered. An accord without satisfaction is not a defence to the action.
2. The satisfaction must be valuable consideration. The compromise of a doubtful claim is good consideration; so is the abandonment of a counterclaim or a forbearance to sue.
3. The accord operates upon the cause of action, not merely upon the action. Once the cause of action is extinguished by accord and satisfaction, a fresh suit on the same facts is barred. The principle is part of the larger settlement-and-compromise architecture, with the underlying authority in Section 63 of the Indian Contract Act, 1872.

In multi-defendant cases the doctrine interlocks with the rule that release of one joint tortfeasor releases all the others. An accord and satisfaction with one of the joint tortfeasors will, on classical principle, discharge the rest — see Thurman v. Wild, (1840) 11 Ad & E 453, and the cognate analysis on strict liability where the same release rule applies to the multi-defendant industrial-accident case. The avoidance technique is to draft a covenant not to sue rather than a release; the doctrinal basis for the distinction is treated more fully in the chapter on joint and several tortfeasors.

Release

Release is the formal extinguishment of a cause of action by the plaintiff, ordinarily by deed but in modern practice by any unambiguous written instrument. The release operates upon the cause of action itself; once executed, the right is gone. The classical authorities on the joint-tortfeasor effects of release are Duck v. Mayeu, [1892] 2 QB 511, and Cutler v. McPhail, [1962] 2 QB 292, both holding that the release of one joint tortfeasor releases all the others because the cause of action is single and indivisible.

Distinguish release from a covenant not to sue. The covenant not to sue is a personal undertaking by the plaintiff towards the particular defendant; it leaves the cause of action intact, and a suit against another joint wrongdoer is competent — see Hutton v. Eyre, (1815) 6 Taunt 289. The drafting consequence in modern settlement practice is that a settlement deed that means to leave the action alive against the others must be drawn as a covenant rather than as a release. The point recurs throughout settlement litigation in motor-accident, defamation and product-liability cases — see the analysis under defamation and its defences for multi-publisher release problems.

Acquiescence and laches as adjuncts to discharge

Two equity-based doctrines operate at the margin of discharge. Acquiescence is the inference, drawn from the plaintiff's conduct, that he has assented to the wrong, with the consequence that he is estopped from later complaining of it. Laches is the equity-based bar on a plaintiff who has "slept on his rights" so long that it would be inequitable to grant a remedy. Neither extinguishes the cause of action at law as limitation does, but each can defeat the discretionary remedies of injunction and specific restitution where those remedies are sought.

The point connects to the wider treatment of general defences in tort: where a defendant pleads that the plaintiff consented to the act or accepted the risk, the conduct-based defence of consent runs in parallel with the equitable doctrines of acquiescence and laches in those rare cases where the remedy sought is equitable rather than damages.

Insolvency and abatement of judgment

Two further events deserve mention. The insolvency of the defendant does not extinguish the cause of action but transfers the liability to the insolvent's estate, with the claim ranking in the insolvency in priority to be determined by the insolvency code. The death of either party after judgment leaves the decree intact but may complicate execution; the Indian Succession Act and the Code of Civil Procedure govern the transmission of decrees to the legal representatives. Where the plaintiff's death is followed by the question whether his estate may pursue an appeal, Zargham Abbas v. Hari Chand, AIR 1971 All 397, illustrates the principle that death of the first appellant abates the appeal but does not affect the decree, and the decree may continue to be executed against the assets of the deceased in the hands of his heirs.

Summary table of the five modes

1. Death of a party. Common Law: actio personalis moritur cum persona. Statutory: Section 306, Indian Succession Act, 1925; in England, the Law Reform (Miscellaneous Provisions) Act, 1934. Survival is the rule; defamation, assault and "other personal injuries" are the exceptions.
2. Limitation. The Limitation Act, 1963 — Articles 72 to 77 for personal-injury, defamation and similar torts (one year), and Article 113 for other torts (three years).
3. Waiver of tort. Election by the plaintiff to sue in quasi-contract instead of tort; available for conversion, trespass, deceit and the like; not available for defamation or assault. United Australia Ltd. v. Barclays Bank, [1941] AC 1.
4. Accord and satisfaction. Contractual discharge — accord plus satisfaction; release of one joint tortfeasor releases all unless drafted as a covenant.
5. Release. Formal extinguishment of the cause of action; distinguish covenant not to sue. Duck v. Mayeu, [1892] 2 QB 511; Hutton v. Eyre, (1815) 6 Taunt 289.

Exam angle and common pitfalls

Three traps recur in objective papers. First, candidates conflate actio personalis moritur cum persona with the rule in Baker v. Bolton; the first is about the survival of an existing cause of action, the second is about whether causing death is itself a tort. They are independent doctrines and the statutes that abrogate them are different — Section 306 of the Indian Succession Act for the first, Section 1A of the Fatal Accidents Act, 1855 for the second. Second, candidates miss the statutory exception in Section 306 for defamation, assault and "other personal injuries", and the High-Court split on the meaning of "other personal injuries". Third, candidates confuse waiver of tort (the plaintiff's election between concurrent remedies) with release or accord and satisfaction (the bilateral extinguishment of the cause of action). The five modes operate at different stages and on different conceptual bases; the ability to slot a fact-pattern correctly into one of them is the discipline that the chapter teaches.

Frequently asked questions

What is the meaning of actio personalis moritur cum persona?

It is a Common Law maxim that a personal cause of action dies with the person, with the consequence that on the death of either the plaintiff or the defendant, a tort claim came to an end. The rule applied to torts of every kind, however far the litigation had progressed. It has been abrogated by statute in England by the Law Reform (Miscellaneous Provisions) Act, 1934 and in India by Section 306 of the Indian Succession Act, 1925, except for actions for defamation, assault and "other personal injuries" causing death of the party.

Does an action for malicious prosecution survive the death of a party in India?

The High Courts have divided. The Calcutta and Rangoon High Courts have read "other personal injuries" in Section 306 of the Indian Succession Act narrowly as meaning physical injuries only, with the result that an action for malicious prosecution survives. The Madras, Bombay, Patna and Allahabad High Courts have taken the wider view that the phrase covers injuries to reputation and other non-physical injuries, with the result that a malicious-prosecution suit abates. The Supreme Court has not yet resolved the conflict.

What is the difference between actio personalis moritur cum persona and the rule in Baker v. Bolton?

The two doctrines are independent. Actio personalis moritur cum persona asks whether a tort cause of action that has already arisen survives the death of either party — it concerns the continuation of an existing claim. The rule in Baker v. Bolton asks whether causing the death of a person is itself a tort actionable by his dependants — it concerns the creation of a new claim. The first is abrogated by Section 306 of the Indian Succession Act; the second is abrogated by the Fatal Accidents Act, 1855 in India and the Fatal Accidents Act, 1976 in England.

What is waiver of tort, and which torts can be waived?

Waiver of tort is the plaintiff's election to sue in quasi-contract for the recovery of a benefit obtained by the wrongdoer rather than in tort for damages. The doctrine, classically stated in United Australia Ltd. v. Barclays Bank Ltd., [1941] AC 1, allows the plaintiff to recover the wrongdoer's gain instead of his own loss. The torts that can be waived are those that yield a measurable benefit to the wrongdoer — conversion, trespass to land or goods, deceit, and the action for money extorted by threats. Defamation and assault cannot be waived.

What is the limitation period for a tort action in India?

It depends on the tort. Articles 72 to 77 of the Limitation Act, 1963 prescribe a one-year period for personal injury, false imprisonment, malicious prosecution, libel, slander, and seduction-of-servant claims. Article 113 — the residuary article — prescribes three years from the time when the right to sue accrues for any tort not otherwise provided for. The Motor Vehicles Act, 1988 contains a separate six-month period for claims before the Motor Accident Claims Tribunal under Section 166, with the Tribunal having discretion to admit late claims on sufficient cause shown.

What is the difference between release and a covenant not to sue?

A release is a formal extinguishment of the cause of action; once executed, the right is gone, and in the case of joint tortfeasors the release of one releases all because the cause of action is single — Duck v. Mayeu, [1892] 2 QB 511; Cutler v. McPhail, [1962] 2 QB 292. A covenant not to sue is only a personal undertaking by the plaintiff towards a particular defendant; the cause of action remains intact and a suit against another joint tortfeasor is competent — Hutton v. Eyre, (1815) 6 Taunt 289. The drafting distinction is critical in modern settlement practice.