Report No. 111

1.5. History of the rule disallowing recovery for fatal accident.-

It was, thus, one of the celebrated oddities of the common law that, for the wrongful killing of a human being, redress could not be obtained in tort. An over-statement by Lord Ellenborough is considered to have been responsible for stopping the development of such a remedy.1 The exact origin of the rule is, however, complex and obscure.2

So far as the person injured (and consequentially dead) is concerned, naturally, he could not physically sue and his own cause of actio.- even if the law gave on.- would not have survived at common law, in view of the operation of another rule, namely, that personal actions die with the person. But this rule, by itself, would not have prevented the recovery of compensation by his dependants. What prevented recovery by the dependants was the rule prohibiting award of compensation for death, which has been mentioned above.

1. (a) Holdsworth "Origin of rule in Bakar v. Bolton", (1916) 32 LQB 43.

(b) Holdsworth H.E.L., (1923), Vol. 3, p. 331.

2. Malone Genesis of Wrongful Death, (1965) 17 Stan L Rev 1043.