Partridge v Chick

Partridge v Chick - [1951] HCA 67 - HCA 1951 case summary — Zoe

[6]

Clearly enough, before the Survival of Actions Act 1942 Vict., the death of a wrongdoer put an end to a cause of action against him under Lord Campbell's Act if, by the death of the person wronged, it had already arisen and, if the person wronged was still alive, put an end to the cause of action vested in him and so made it impossible for a cause of action to arise under Lord Campbell's Act upon his subsequent death. The question upon which the appeal depends is whether the Survival of Actions Act 1942 has made it possible to maintain an action under Lord Campbell's Act when the order of deaths is first the wrongdoer and then the person wronged. When the order is first the death of the person wronged and then the death of the wrongdoer it is clear enough that under the Survival of Actions Act the cause of action against the wrongdoer, having already vested in the relatives of the person wronged and in his legal personal representative for their benefit, survives against the estate of the wrongdoer. But when the wrongdoer dies first and the wronged person survives him and dies afterwards, the latter's relatives and his legal personal representative on their behalf have not upon the death of the wrongdoer any cause of action under Lord Campbell's Act to survive his death. Their cause of action can only arise subsequently when the wronged person dies. In the meantime the wronged person, having sustained injuries, has a cause of action which has survived against the wrongdoer's estate and, on the wronged person's death, it will survive him too for the benefit of his estate. But that is not the cause of action under Lord Campbell's Act, which is a distinct cause of action to which the relatives are entitled and the legal personal representative suing for their benefit. The basal provision of the Survival of Actions Act 1942 is simply 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. By s. 2 this provision is placed in the Administration and Probate Act as s. 25 (1). The contention for the respondent is that at the death of the motor-car driver, of whose estate he is administrator, no cause of action subsisted in the appellant or in the relatives of the deceased cyclist, for whose benefit the appellant sues as administrator, for the simple reason that the cyclist was still living. They had no cause of action to survive against the estate of the motor-car driver. There is no statutory provision, says the respondent, which governs this position and operates to vest a cause of action under Lord Campbell's Act in the relatives of the wronged man when the wrongdoer predeceases him.

[7]

The question is whether, in a combination of the Survival of Actions Act and of Part III. of the Wrongs Act (Lord Campbell's Act) a statutory provision is not to be found which does so operate. For, if there be none, it is undeniable that the respondent's contention is well founded. It is well settled that the cause of action which Lord Campbell's Act gives to the relatives of a man who has been killed is a new cause of action. An essential condition is that his death must have been caused by a wrongful act, neglect or default, and the act, neglect or default must have been such as would (if death had not ensued) have entitled him as a party injured to maintain an action and recover damages in respect of the wrongful act, neglect or default (cf. s. 15 of the Wrongs Act). But, while that is an ingredient in the relatives' cause of action, theirs is a fresh cause of action depending upon the prejudice sustained by them in consequence of his death. In Blake v. Midland Railway Co. [1] Coleridge J. made the statement, often quoted, that the Act does not transfer the right of action of the party injured to his representative, but gives to the representative a totally new right of action on different principles. It is "an action which, as is pointed out in Pym v. Great Northern Railway Co. [2] , is new in its species, new in its quality, new in its principle and which can only be brought if there is any person answering the description of the widow, parent, or child, who under such circumstances suffers pecuniary loss by the death"; the words of Lord Blackburn in Seward v. "Vera Cruz" [3] . Referring to what was said by Bowen L.J. in the same case [4] , Knox C.J., in Victorian Railways Commissioners v. Speed [5] said: "The action is in truth an action to recover damages for the injuriously affecting the interests of the dead man's family. It arises partly from the death and partly from a combination of circumstances pecuniary or other with which the person whose alleged wrongful act caused the death has nothing to do".

[12]

In the case of a right of action under Lord Campbell's Act the damages are those "resulting from such death" (s. 16 of the Wrongs Act). The death must be caused by a wrongful act, neglect or default (s. 15). Now, if the fulfilment of these requirements satisfies the condition expressed in the opening words of sub-s. (6) of the new s. 25 of the Administration and Probate Act, there seems to be no reason why sub-s. (6) should not include the case. The condition referred to is that stated by the words "where damage has been suffered by reason of any act or omission in respect of" &c. The damages suffered for which Lord Campbell's Act gives a right of action consist in the pecuniary loss which the death brings to relatives: "damages for injuriously affecting the dead man's family" in the language already quoted. There is no difficulty in applying to this loss the words in sub-s. (6) "Where damage has been suffered". But then follow the words "by reason of any act or omission in respect of which a cause of action would have subsisted" &c. Here the "act or omission" is the basis of the cause of action which would be complete when the damage ensues. Under Lord Campbell's Act there are three things - the pecuniary loss constituting the damage: the death from which it arises: the wrongful act, neglect or default causing the death. It may be said that under sub-s. (6) only the first and third are covered. But this is a verbal point, an objection which overlooks the generality of the words and the broad principle they express. They apply where the damage is the consequence of the wrongful act or omission in such a sense that given the wrongful act or omission and the damage flowing from it a cause of action exists. In an action under Lord Campbell's Act what is required is no other than damage proceeding from the wrongful act, although it is in a specific case involving two steps, namely, a wrongful act or omission causing death and thereby pecuniary loss. It has been said that the basis of the action lies in pecuniary loss actual or expected or in the destruction of a reasonable expectation of pecuniary benefit: Taff Vale Railway Co. v. Jenkins [1] . Thus at the moment of death of the wronged person his relatives' expectation of pecuniary benefit is destroyed and it is that destruction which at once gives them their cause of action. So viewed there is no reason why the primary requirements of a right of action under Lord Campbell's Act should not be held to correspond with the condition expressed at the commencement of sub-s. (6) so that the condition is satisfied. In other respects the language of the sub-section appears aptly to apply to the case of a right of action under Lord Campbell's Act where the wrongdoer has predeceased the injured party. That is best shown by interpolating in the sub-section the specific applications of each phrase, thus: - "Where damage (the destruction of the expectation of pecuniary benefit from the deceased's remaining alive) has been suffered (by his relatives) by reason of any act or omission (the wrongful act neglect or default) in respect of which a cause of action (under Lord Campbell's Act) would have subsisted against any person (the wrongdoer) if that person (the wrongdoer) had not died before the damage (the destruction by the deceased's death of the expectation of pecuniary benefit) was suffered (by the relatives) there shall be deemed for the purposes of this section (including sub-s. (1)) to have been subsisting against him (the deceased wrongdoer) before his (the wrongdoer's) death such cause of action (under Lord Campbell's Act) in respect of that act or omission (the wrongful act neglect or default) as would have subsisted (in favour of the relatives) if he (the wrongdoer) had died after the damage (the loss of the expectation of pecuniary advantage) was suffered (by the relatives)."

[25]

I agree with Lowe A.C.J. that the first argument fails. Section 15 of the Wrongs Act gives the "new" statutory cause of action where "the death of a person is caused by a wrongful act neglect or default and the act neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages". It must be assumed, for present purposes, that Chick was guilty of a wrongful act neglect or default which would, if Partridge's death had not ensued, have entitled Partridge to maintain an action against Chick. Section 15 proceeds: "then and in every such case 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". But, before any action under s. 15 was, or could be, commenced against Chick, Chick died. Section 15 gives an action only against the alleged wrongdoer himself. If he dies before action brought, no action lies. If he dies after action brought but before judgment, the action is abated according to the rule of the common law. If, therefore, s. 15 stood alone, it is clear that the plaintiff could not maintain her action in respect of the death of Partridge: it would not matter whether Partridge died before Chick or Chick before Partridge. The plaintiff turns accordingly to the Survival of Actions Act. But the new sub-s. (1), which that Act introduces into the Administration and Probate Act 1928, merely says (so far as material) 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". For the purposes of this sub-section the order in which the deaths occurred becomes of vital importance. For, if the death of the alleged victim (Partridge) occurred before the death of the alleged wrongdoer (Chick), a cause of action under the Wrongs Act subsisted against Chick at his death, and the effect of sub-s. (1) will be that that cause of action will survive against his estate. But in fact Chick died before Partridge. At Chick's death, therefore, no cause of action under the Wrongs Act subsisted against him, and sub-s. (1), if it stood by itself, would have no application to the case. Cf. Kebby v. Waldron [1] . The plaintiff's first argument thus fails.

At a glance

Court

Decision date

Before

Source

Judgment (32 paragraphs)

Parties