Partridge v Chick

The appellant plaintiff is a widow whose husband died as a result of injuries received in a road accident. While mounted upon a bicycle he came into collision with a motor car and died next day. His widow obtained administration of her husband's estate and as administratrix she brought the action under Lord Campbell's Act (Part III. of the Wrongs Act 1928 Vict.) for the benefit of herself and five infant children. The accident by which her husband lost his life caused also the death of the driver of the motor car. He too died on the day following the accident, but at an hour earlier than that of the death of the appellant's husband. The defendant in the action is the administrator of the estate of the driver of the car and he is sued in that capacity.

The point of law raised is whether an action under Lord Campbell's Act will lie against the personal representative of a deceased person whose death occurred before that of the person in respect of whose subsequent death the action under Lord Campbell's Act is brought. In the Supreme Court Lowe A.C.J. decided that the action would not lie.

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.

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".

1. (1852) 18 Q.B. 93, at p. 110 [118 E.R. 35, at p. 41]. 2. (1862) 2 B. & S. 759 [121 E.R. 1254]; (1863) 4 B. & S. 396 [122 E.R. 508]. 3. (1884) 10 App. Cas. 59, at p. 70. 4. (1884) 9 P.D. 96, at p. 101. 5. (1928) 40 C.L.R. 434, at p. 438.

These passages show that by itself the declaration contained in sub-s. (1) of the new s. 25 of the Administration and Probate Act that causes of action subsisting against a person dying shall survive against his estate cannot apply to a cause of action under Lord Campbell's Act arising after the death of the wrongdoer through the subsequent death of the person wronged. But sub-s. (1) does not stand by itself. Sub-section (6) of the same section provides for cases where the death of a wrongdoer occurs after he has done the wrongful act or made the wrongful omission but before any damage has ensued. It will be seen that where damage is the gist of the action no cause of action would subsist in such a case at the wrongdoer's death to survive against his estate. To make what is meant clear it may be better to give an imaginary example. Suppose a wrongful act consisting in placing an obstruction in a highway and further suppose that before anyone collides with the obstruction the person responsible dies. Then someone lawfully using the highway is injured by the obstruction. His cause of action would not have accrued before the wrongdoer's death and by itself sub-s. (1) would not cover the case, for reasons which in their essentials are the same as those which exclude the present case from the operation of sub-s. (1) by itself.

Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage is suffered there shall be deemed for the purposes of this section to have been subsisting against him before his death such cause of action in respect of that act or omission as would have subsisted if he had died after the damage was suffered.

It will be seen that this provision operates by bringing under sub-s. (1) a case otherwise outside its application and does so by directing that in the condition it defines there shall be deemed for the purposes of the section to have been subsisting against the wrongdoer before his death such cause of action in respect of the act or omission as would have subsisted on the false assumption that he had died after the damage was suffered.

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)."

This application of sub-s. (6) is supported by the second part of sub-s. (7) which provides that the section shall apply in relation to causes of action under Part III. of the Wrongs Act as it applies in relation to other causes of action not expressly excepted from the operation of sub-s. (1). The provision is applicable to the whole section of which sub-s. (6) is but a part, but it means that whatever in the section is capable of application to rights of action under Part III. shall be applied.

In answer to such an application of sub-s. (6), it was argued that the sub-section was directed to the problem of causes of action of which damage is the gist when the death of the wrongdoer occurs before the damage ensues and that it was but an accident if the language fitted a right of action under Lord Campbell's Act where the death of the wrongdoer preceded that of the injured party. But, as has been already pointed out, in essentials they are like cases: they fall under the same description, viz., the death of a wrongdoer intervening before the consequences of his wrongful act ensue. The language of the sub-section is intended to express a principle and such a case is within the principle.

It was further urged for the respondent that the legislature might well have regarded it as unjust to expose a dead man's estate to claims arising from loss of life occurring long after his death: the section covers nearly all torts and it is a mistake to construe it as if it related primarily to road accidents.

The legislature seems, however (subject to express exceptions), to have endeavoured completely to abolish the doctrine by which the death of a party ended liability arising from civil wrongs. It provided in sub-s. (5) a period of limitation for actions which applies to all other cases under sub-s. (1) aided by sub-s. (6), and it is hard to understand why there should be any differentiation in the case of Lord Campbell's Act. For the purposes of sub-s. (5) an action under that Act can be taken to be based on a cause of action in tort. See Hodsman v. Maxwell [1] and Glanville Williams (1951), Joint Torts and Contributory Negligence, note 25 to s. 115, p. 444. Indeed, if the case of the death of the wrongdoer before the injured party as affecting a right of action under Lord Campbell's Act were not covered, it is almost evident that it would be a casus omissus and in the construction of a remedial statute such a conclusion is to be avoided if the language of the enactment allows.

The appellant, by way of alternative, contended that the result which the foregoing reasoning reaches upon sub-s. (6) may also be justified by a combination of the language of s. 15 of the Wrongs Act with sub-s. (1) of the new s. 25 of the Administration and Probate Act. The argument involves an application of s. 15 of the Wrongs Act upon the basis that sub-s. (1) of s. 25 of the Administration and Probate Act caused the right of action vested in the person wronged (in this case the cyclist) to survive the death of the wrongdoer (the car driver), who predeceases him, against the wrongdoer's estate. That means that sub-s. (1) of s. 25 is resorted to to keep alive the cause of action vested in the injured party notwithstanding the wrongdoer's death, to keep it alive so that it existed at the moment of the injured party's death. So applying sub-s. (1) of s. 25, s. 15 of the Wrongs Act is read in a manner which may best be made clear by the use again of interpolations. Interpolated with the specific applications of phrases it would run as follows: - "Whensoever the death of a person (the person wronged, the cyclist) is caused by a wrongful act neglect or default (the negligent driving of the motor car) and the act neglect or default is such (i.e. is tortious) as would, if death (of the person wronged, the cyclist) had not ensued, have entitled the party injured (the cyclist) to maintain an action and recover damages (as it would at the time of his death have entitled him to maintain an action against the wrongdoer's legal personal representative or "estate") in respect thereof (i.e. of the act neglect or default), then and in every such case, the person who would have been liable (i.e. the legal personal representative of the wrongdoer) if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured."

A substantial objection to this mode of applying s. 15 to the situation produced by sub-s. (1) of the new s. 25 of the Administration and Probate Act is that, while it invokes sub-s. (1) to continue the cause of action against the estate of the wrongdoer who predeceased the person wronged so as to apply to the wrongdoer's legal personal representatives the expression "the person who would have been liable", yet it ignores sub-s. (1) in its application to the person wronged, for the benefit of whose estate the cause of action would have survived, when he in turn died. The words "would have been liable if death had not ensued" contemplate a cause of action lapsing with the death of the party in whom it is vested. But sub-s. (1) makes it impossible that this should now occur. It was because a cause of action for a civil wrong did lapse on death that the statute was enacted, and there is much to be said for the view that the words quoted imply that the cause of action must have been such that it would not have survived the death of the injured person, though it must be conceded that the application of the provision to causes of action ex contractu tends against such a view: cf. Woolworths Ltd. v. Crotty [1] .

The possibility of this being the true meaning of the words shows how necessary it was to include the provision contained in sub-s. (7) of s. 25. For without that provision the words might no longer have applied when, by virtue of sub-s. (1), the cause of action in the person wronged survived his death for the benefit of his estate. Sub-section (7) prevents the application of sub-s. (1) so as to derogate from rights otherwise conferred by Part III. of the Wrongs Act, but it is difficult to use that as a justification for employing sub-s. (1) to bring about the fulfilment of a requirement of s. 15 and at the same time ignoring it in the case of an hypothesis which its application would render false.

The appellant's alternative argument is open to yet another objection, which may be thought to arise from, or at all events be supported by, the same consideration, namely, the consideration that necessarily underlying s. 15 is the assumption that the death of either party, the death of the wrongdoer alike with that of the person wronged, put an end to the cause of action upon the hypothetical existence of which in the man dying the enactment is based. For on that assumption it is clear that the expression "the person who would have been liable" must be understood as referring to the wrongdoer, including, of course, under that description not only the person actually guilty of the wrongful act or omission but also any person vicariously responsible for the wrong. Indeed, it may be thought that the natural meaning of the phrase "the person who would have been liable" is "the person who would have been liable to such an action and to have damages recovered from him personally by the injured party". If so it is hardly apt to include a liability to be sued in a representative capacity in an action in which the judgment would be for the recovery of damages out of the assets of a testator or intestate.

It is, however, unnecessary to consider further the possible operation of s. 15 to bring about the result that the action is maintainable in view of the conclusion that sub-s. (6) does so.

The appeal should be allowed with costs. The order of the Supreme Court should be discharged and in lieu thereof it should be ordered that the point of law arising upon pars. 7 and 10 of the defence in relation to the allegations contained in the statement of claim be determined by a declaration that the death of Leslie Frederick Chick before the death of George Frederick Partridge affords the defendant as administrator of Leslie Frederick Chick's estate no answer to the plaintiff's claim in the action under Part III. of the Wrongs Act. It should be further ordered that the plaintiff's taxed costs of the summonses dated 14th December 1950 and 13th June 1951 and of the proceedings therein be paid by the defendant. There should be a certificate that so far as such proceedings were in chambers they were proper for the attendance of counsel.

In this case the plaintiff, as administratrix of the estate of George Frederick Partridge deceased, sued the defendant as administrator of the estate of Leslie Frederick Chick deceased, alleging a cause of action under s. 15 of the Wrongs Act 1928 Vict.. The statement of claim alleged that on 13th October 1949 a motor car driven by Chick collided with a bicycle driven by Partridge, that the collision was due to the negligence of Chick, and that both Partridge and Chick died on the following day from injuries received in the collision. The defence alleged that Chick died a short time before Partridge and raised a contention that the action could not therefore be maintained. On summonses in chambers Lowe A.C.J. decided that this contention was sound in law, and, the matter being thereupon referred into court, judgment in the action was pronounced for the defendant. From that judgment the plaintiff appeals.

Two arguments on behalf of the plaintiff were submitted to the learned judge of the Supreme Court, and two were presented before this Court. The first depends on what is said to be the combined effect of s. 15 of the Wrongs Act 1928 and the new sub-s. (1) introduced into s. 25 of the Administration and Probate Act 1928 Vict. by s. 2 of the Survival of Actions Act 1942 Vict.. The second is based on the new sub-s. (6) of s. 25 which is introduced by the same section of the Act of 1942.

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.

It was said that the words "the person who would have been liable" in s. 15 of the Wrongs Act must now be read as including the executor or administrator of the person guilty of the wrongful act neglect or default, because the effect of the new s. 25 (1) of the Administration and Probate Act is to make the executor or administrator of that person liable to an action for damages in cases where the person injured does not die. This is a fairly arguable view, but it does not seem to me to represent a legitimate reading of s. 15. The expression "the person who would have been liable" doubtless includes persons other than the person immediately guilty of the wrongful act neglect or default. It would cover the master of a servant and the principal of an agent. But it contemplates, in my opinion, only persons who are personally liable for the act neglect or default. It cannot, I think, be fairly read as including an "estate" against which a cause of action survives by virtue of s. 25 (1), or a person or persons who would merely represent an estate for the purposes of that sub-section. Cf. Seward v. "Vera Cruz" [1] (per Lord Selborne L.C.).

I am of opinion, however, that Mr. Eggleston's second argument is sound, and that the new sub-s. (6) enables the plaintiff to maintain her action, and, if she can prove her facts, to recover damages. The statute under consideration in Kebby v. Waldron [2] contained no such provision as sub-s. (6). That sub-section provides that "where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage is suffered there shall be deemed for the purposes of this section to have been subsisting against him before his death such cause of action in respect of that act or omission as would have subsisted if he had died after the damage was suffered."

I am of opinion that the plaintiff in the present case "suffered damage" within the meaning of sub-s. (6) when the death of Partridge occurred. It is, of course, true to say that, before damages can be recovered under the Wrongs Act, actual pecuniary loss consequential on the death must be proved. But it is also, I think, true to say that the elements of the cause of action given by the Wrongs Act are (1) an injuria consisting of a "wrongful act neglect or default" having the character described in s. 15, and (2) a damnum which is constituted by the death of the "victim". As Lord Selborne said in Seward v. "Vera Cruz" [1] , "death is essentially the cause of the action". The death may or may not amount to a damnum. It is easy to imagine cases where the death of a husband or father involves no loss to his widow or children. It may indeed involve nothing but clear gain to them. And in such cases no action under the Wrongs Act can succeed. But these considerations do not alter the fact that the cause of action, if there is a cause of action, is complete at the moment when death takes place, and damages must be assessed as at that moment. Given the injuria, the death supplies the damnum, and the rest is merely matter of quantification of the damnum.

If the view which I have expressed be correct, as I think it is, the present case is seen to fit within sub-s. (6) on the assumptions which must, of course, be made for the purposes of this appeal. Damage has been suffered by the plaintiff. That damage is constituted by the death of Partridge. It has been suffered by reason of an act or omission of Chick. In respect of that act or omission a cause of action under the Wrongs Act would have subsisted in the plaintiff against Chick if Chick had not died before the plaintiff suffered her damage in the death of Partridge. The consequences provided by sub-s. (6) then follow. There must be deemed for the purposes of s. 25 of the Administration and Probate Act (including sub-s. (1) of that section) to have been subsisting against Chick before his death any cause of action which would have subsisted against him if he had died after Partridge's death. A cause of action under the Wrongs Act would have subsisted in the plaintiff at Chick's death if Chick had died after Partridge. That cause of action must be deemed to have been subsisting against Chick before his death. And, by virtue of sub-s. (1), that cause of action survives against Chick's estate.

The difference between the view which I take and the view taken by Lowe A.C.J. rests, I think, in the last analysis, not on any difference of opinion as to the scope of the word "damage" but on a difference as to the meaning to be given to the word "subsist". I treat it, in effect, as meaning simply "exist". His Honour, I think, treats it as meaning, in effect, "continue to exist", and he accordingly regards the words in sub-s. (6) "in respect of which a cause of action would have subsisted" as covering only cases in which a cause of action did exist before the death of the person in question and was only prevented from continuing to exist by his death. On this view, since no cause of action under the Wrongs Act did exist against Chick before his death, the case is not covered by sub-s. (6).

The Oxford Dictionary gives (inter alia) the following meanings of the word "subsist": - "(1) To have an existence as a reality, to exist as a substance or entity (4) To preserve its existence or continue to exist". Webster gives us: - "(1) to continue, remain, abide, to retain the present state: (2) To have existence, to be, to exist or continue to exist". The dictionaries do not seem to carry us very far. My own feeling is that the view of Lowe A.C.J. probably interprets the word, regarded simply in isolation as an English word, more accurately than does my own view. But to regard it as meaning simply "exist" is very far indeed from giving to it an unnatural or unlikely meaning. And there are, I think, extremely strong reasons for so regarding it in its context here. In sub-s. (1) the word "subsisting" is clearly used without any implication of continuance: indeed it is used on the assumption that, but for sub-s. (1) itself, a cause of action would not continue to exist. And the whole scope and purpose of s. 2 of the Survival of Actions Act tends to support, I think, the wider view of the word. It would be a strange result, having regard to the clear policy embodied in sub-s. (1), if the right of action under the Wrongs Act depended, in such a case as the present, on whether the wrongdoer died before the victim or the victim before the wrongdoer. I think, too, that my view of sub-s. (6) generally is strongly supported by the latter part of the new sub-s. (7), which provides that s. 25, as amended, shall apply to causes of action under the Wrongs Act as it applies to other causes of action not expressly excepted. Finally, I have not been able to think of any purpose which can be effected by sub-s. (6) or of any effect that can be given to it if it does not apply to such a case as the present. I think its purpose was to fill in the gap left by sub-s. (1), and I think it achieves its purpose and applies to this case.

In my opinion, this appeal should be allowed. I agree with the order proposed by my brothers.