DEATH AS A CAUSE OF ACTION

1. Introduction.

A cause of action may arise as a result of the wrongful death of one party caused by the negligence of the defendant. When a person dies or is killed due to the negligence of another, including murder, the surviving members of the victims family may sue for wrongful death. Most wrongful death claims follow in the wake of criminal trials, using similar evidence but with a lower standard of proof. Regardless, someone found liable for wrongful death may or may not be convicted of a crime associated with the death.

A suit for wrongful death may only be brought by the personal representative of the decedent’s estate. Every state has a civil “wrongful death statute” or set of statutes, which establish the procedures for bringing wrongful death actions. Actions for personal injury, conscious pain and suffering, or expenses incurred prior to the defendant’s death are also brought by the personal representative.

2. What are the formal requirements for bringing an action in this area?

In order to bring a successful cause of action for wrongful death, the following elements must be proved;

1. The death of a human being.
2. The death was caused by another’s negligence.
3. The survival of family members who are suffering injury as a result of the death.
4. The appointment of a personal representative for the decedent’s estate.

3. The Law Applicable in Uganda.

The law regarding this kind of claim in Uganda is provided for under the Law Reform (Miscellaneous Provisions) Act¹. Section 5 of the Act states thus,

“ If the death of any person is caused by any wrongful act, neglect or default of any person, and the act, neglect or default is such as would, if death had not ensued, have entitled the person injured by it to maintain an action and recover damages in respect of it, 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, and although the death was caused under such circumstances as amount in law to a felony.”

The wording of the above section means that the family of the deceased person shall be entitled to damages due to the negligence of the defendant if they can show that the deceased would have successfully claimed for damages for the negligence of the defendant, had the death not occurred. This is why such a claim is referred to as death as a cause of action. It therefore arises, not in the interest of the family, but in the interest of the loss of services that the deceased was carrying out and those that he would still have continued to carry out, but for the defendant’s negligent act or omission that resulted into his death.

Section 6(1) of the Act also provides that,

“Every action brought under section 5 shall be for the benefit of the members of the family of the person whose death has been so caused, and shall be brought either by and in the name of the executor or administrator of the person deceased or by and in the name or names of all or any of the members (if more than one) of the family of the person deceased.”

It follows therefore, that all the family members of the deceased are entitled to claim for damages of for the death of their person. The courts have however, limited granting of compensation to only those people who have been dependents on the deceased.

It is evident in previously decided cases that courts are reluctant to grant damages for instance to the siblings of the deceased if the deceased was a young child. Courts have set a standard for award of damages to the family members. Generally, if the deceased is an old person, who has for instance been looking after the whole family, all the members of the family are entitled to compensation from the defendant.

If however, the deceased is a young child, courts have decided that it is only parents that are entitled to compensation for the wrongful death. This is to reduce on the number of claims and also not to impose a lot of unfair and unnecessary award of damages to the entire family which might be an unfair burden on the defendant.

4. The Common Law Position Before.

The general rule under common law was that death could not rise to a cause of action on other persons even if they were dependents on the deceased. This principle was derived from the ruling of Lord Ellenborough in Baker v Bolton², wherein he stated that in a civil court, death of a human being could not be complained of as an injury.

In Baker v Bolton³, the plaintiff and his wife were passengers on top of the defendant’s stage coach which overturned through the negligence of the defendant causing bruises to the plaintiff and death to his wife, a month later. The plaintiff recovered £100 for his own bruises and for the loss of his wife’s security up to the moment of her death but nothing for such loss, after that event. This decision was later approved by H.L in Admiralty Commission v S.J America⁴.

The development of Railways in England led to an increase in the number of accidents in which was both fatal and non-fatal. This made a change in law imperative because while those who survived in an accident could recover substantial damages, the dependents of those who were killed could not recover anything.

Therefore in 1846, the Fatal Accident Act (popularly known as Lord Campbell’s Act) was passed which virtually overturned the harsh common law in so far as those dependents who were specified in the Act were concerned.

The Fatal Accidents Act gave a new right of action for the benefit of the members of the family of the deceased which had to be brought by and in the name of the executor or administrator of the deceased or by and in the names of all or any of the members of the family. This cause of action was entirely different and separate from the cause of action which survived for the benefit of the deceased’s estate and these two causes of action were usually joined in the same action.

The provisions of the Fatal Accidents Act were incorporated in the law of Uganda in 1953 by the Law Reform (Miscellaneous Provisions) Act⁵. Important to note is that the common law principles still stand and the Act just gives exceptions to the common law principles. This was observed by the High Court in Sabani Kibenga v Crispus Juko⁶, wherein it held that the common law principles still hold good in Uganda whilst the Act provides exceptions to the common law.

The Purpose of the Act was to provide a new cause of action which would enable dependents of the deceased to claim compensation for the loss suffered as a result of his death. Although Section 6 of the Act does not use the word “dependents”, but “members of the family”, the intention was to provide for members of the family who were dependents of the deceased and therefore who had suffered pecuniary loss as a result of his/her death. In each case the question to ask is what pecuniary loss the member of the family has suffered. He would claim to have suffered pecuniary loss if he had lost dependency on the deceased. Damages were not generally awarded as solitium for the bereavement of the family.

In the most celebrated case of Uganda Electricity Board v Musoke⁷, the respondent’s son called Bosco Mwanje, aged 14 years, was electrocuted when he stepped on the appellant’s live electric cables left lying on the ground in Lugazi Township. The respondent filed an action in negligence on behalf of himself and his family claiming special and general damages for loss suffered as a result of death of his son. The action was brought under the Law Reform (Miscellaneous Provisions) Act. As the appellant failed to enter an appearance or file a defence, an interlocutory judgment was entered and the case proceeded to formal proof for assessment of damages.

Odoki JSC, while allowing the appeal, observed that the sisters and brothers of the deceased in that case could not be awarded damages because they were not dependents on the deceased. That for one to succeed in such a claim, they had to prove that they depended on the deceased and that they also enjoyed a certain service from the deceased and that they had suffered a loss of that particular service.

That in the instant case, the deceased lost his when was on his way to buy bread. Court said sending a child to buy bread could not relied on a service lost by the parents. This means that the plaintiff in such must prove that the service they lost was of a particular significance, for instance monetary.

Also, in Wilson Kabega v Uganda Transport Company Ltd⁸ , the plaintiff brought an action on his own behalf and on behalf of the mother of the deceased, stepmother and two brothers and seven sisters, to recover damages for the death of his son aged 13 years who was killed in a traffic accident. He claimed damages for loss of prospective financial benefits and services as a result of the deceased’s untimely death. The evidence relating to loss of services was that the deceased used to prepare tea for his young brothers; he fetched water, made blocks and swept the house and courtyard. During holidays along with his brothers, he would pick coffee and cultivate potatoes. The plaintiff’s claim was rejected.

• Conclusion.

Conclusively, it is understood that for one to claim for wrongful death, they must show first that the defendant was negligent,secondly that the deceased would have successfully brought a claim for damages against the defendant had he not met his death,thirdly they must have appointed a personal representative who is entitled to bring a claim for wrongful death of the deceased, and lastly, they must prove that they were family members of the deceased and not only family members but dependents on the deceased.

1 Cap 79, Laws of Uganda 2000.

2 (1808) 1 Camp 493

3 ibid

4 (1917) AC 38

5 supra

6 CS NO.35 of 1966

7 supra

8 CS NO 434 OF 1970