Discharge of Right of Action in Tort
A right of action for a tort may come to an end or be discharged in one of the following ways:
- Death of Parties[Actio personalis moritur cum persona] — The most important mode of discharge of tort is by way of the death of parties. In common law, the action for damages comes to an end with the death of the person by whom the wrong was done and also with the person to whom the wrong was done.
Once an action has begun and thereafter either party dies before delivery of judgment, the action abates and cannot be started again by or against the representatives of the deceased. The rule prevailed as: “a personal action dies with the person”. This was expressed in the maxim actio personalis moritur cum persona — “Death destroys the right to action”.
Statutory Exception: On death of any person, all causes of action vested in him shall survive for the benefit of his estate, except for:
- Defamation
- Seduction
- Inducing one spouse to leave or remain apart from the other
- Claim for damages for adultery
Case Law: Rose vs. Ford
The plaintiff was the father and administrator of the estate of his daughter, who was seriously injured in a motor car collision due to the defendant’s negligent driving. Her right leg was amputated, and she died four days after the accident. She was unconscious for nearly all four days after the accident.
Her father, as her administrator, claimed to recover damages for the benefit of her estate, in respect of pain and suffering, loss of leg, and shortening of reasonable expectation of life, under the provisions of the Law Reforms (Miscellaneous Provisions) Act, 1934.
Held: Her right to claim damages on all three heads passed on to him, and therefore, he was entitled to recover damages for the benefit of her estate.
- WaiverIf out of several civil remedies available for a wrong, the injured person elects to pursue only one of them, he shall be precluded from pursuing the others afterwards. For example, if he elects to base his action on the ground of breach of contract, he cannot afterwards sue for it as a tort. He will be deemed to have waived the other remedies.
- Accord & SatisfactionJust as a civil obligation can be discharged by accord and satisfaction, tortious liability can also be discharged in this manner. When an agreement has been reached between parties, the consideration of which may even be settled to be paid in the future, the agreement once reached satisfies the claim and is a bar to a court action, except for enforcing the agreement itself.
However, the agreement must be based on payment or something valuable. Otherwise, an agreement unaccompanied by consideration is void and is not a bar to the right of action.
- ReleaseAn injured party can release the wrongdoer from liability to pay compensation. According to English law, a release must be supported by consideration or be a formal document signed, sealed, and delivered.
Under Indian law (Section 63 of the Indian Succession Act), consideration is not necessary for release. Thus, it is open to an injured party to release the wrongdoer without any consideration. However, a release executed under a mistake, or in ignorance of rights, or obtained by fraud, is not binding.
- AcquiescenceIt is a well-settled principle that if a person with full knowledge of his right to bring an action for tort neglects to do so for a significant period, it may be inferred that he has abandoned the right. Mere delay is not sufficient; there must be direct acquiescence to destroy the right of action.
- Judgment RecoveredThis is essentially the rule of res judicata. Once a suit has been filed and decided, a subsequent suit cannot be filed on the same cause of action. More than one action will not lie on the same cause of action.
- Statutes of LimitationAn action for tort must be brought within the prescribed statutory period; otherwise, the right to sue is barred. In India, the Indian Limitation Act lays down the respective periods for suing different torts.
