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The process of compensation and damages awarded upon the shortening of the expectation of life under Tort has gone through a multitude of changes. The earliest instance of compensation paid to aggrieved parties that have suffered grievous injury or loss of life has been observed via maxims and rules in English Common law, such as actio personalis moritur cum persona, which roughly means that upon the death of either of the parties the cause of action dies as well.[1] An issue which has plagued the interpretation of the law of torts in both England and India is the question of how far the causing of death or shortening of someone’s life is actionable in tort.[2] The famous case of Baker v Bolton[3] governed much of the principles and rules of compensation in England and currently still does, although it has been outmoded in India.[4] The crux of the judgement is that the death of a person is not an injury and does not obligate any sort of compensation or damages to the victim’s family in Tort Law. To understand the sway and command the legal rule forwarded by Baker v Bolton has in the avenue of compensation under death in relation to Tort, its history, usage and the continued criticism levied against it has to be understood.


Baker v. Bolton is a case from the year 1808 and involves simple facts. Bolton and his wife were travelling from Portsmouth to London in a stagecoach which overturned during the journey. The plaintiff himself was not grievously injured but his wife was, and due to severe damage and shock to her organs, she died approximately a month later in the hospital where she was admitted. The plaintiff sought compensation and brought upon a cause of action against the proprietors of the stagecoach. The plaintiff claimed that he had undergone great vexation and loss due to the untimely and avoidable passing of his wife. His lawyer remarked that the plaintiff required special damages as “he has been bereft of the comfort, fellowship, and assistance of his said wife, and had from thence hitherto suffered great grief, and anguish of mind”.[5]


Judge Ellenborough sat as the single judge in this case and held that in a Civil Court the death of an individual by itself could be complained of as an ‘injury’ and therefore does not warrant compensation. This was a Nisi Prius decision and Judge Ellenborough cited no common law precedents and provided little reasoning to weigh down his claim. Nevertheless, this rule has found great usage and backing in following cases of the same kind. [6] The plaintiff was allowed damages only for the hospital bills, the physical injuries and the loss suffered to his estate and his person for the period of that one month during which he could not work, from the date of the accident to the day of her death but no more. But he wasn’t allowed any compensation in the way of her death. Though this holding came with no perceived rationale or reasoning, other jurists, commentators and judges like Handford, Holdsworth and Smedley provided their interpretation of the rules behind the statement that the death of a person cannot be seen as an injury and warrants no compensation in a Civil Court. [7]


Handford theorised that the doctrine of actio personalis moritur cum persona seems to explain the judgement of Baker v Bolton adequately.[8] But this maxim commonly refers to the right to the cause of action of the deceased party. This rule is relevant in the 2001 case Balbir Singh Makol v Sir Ganga Ram Hospital where a cause of action was brought against a surgeon whose negligence caused an avoidable death.[9] The surgeon died while the court could get to the complaint and so they held that the maxim of actio personalis shall apply since the person in question died before his case could be heard. Thus this maxim only partially explains the decision.  Another disputable point that would explain the long-standing common-law rule held in Baker v Bolton is the supposed practice of common law undervaluing the loss of human life. This reasoning seems unlikely as, under Anglo Saxon Law, there is a longstanding and well-implemented practice of the defendant paying compensation either in way of the Victim’s family or the Crown.[10]

The lingering effect of the long outmoded ‘felony-merger’ rule might serve as a veritable explanation for the reasoning behind the claim that death is not an injury under a Civil Court. As we know, tort law did not exist until a couple of hundred years ago, it was gradually established to ‘fill in the vacuum’ left by Criminal Law.[11] Under Anglo Saxon and Mediaeval Laws, the consequences of all criminal offences were pecuniary, the wrongdoer paid compensation to the Crown or the Victims estate and that is where the cause of action ended. Gradually this practice changed, and a rule developed that ‘a felony cannot be compounded’.[12] Simply put, civil wrong or a felony cannot be counteracted by the payment of petty damages, instead, the wrongdoer must be taken to court and if convicted, would be sentenced to death. His property and estate would pass over to the Crown’s Treasury and this would make the Civil Claim largely pointless.  The felony–merger rule, therefore, serves to benefit the Crown and usurp the property of the felon.[13] After the segregation of Civil and Criminal Law by the State, the death of a person became exclusively a matter of a criminal court.[14] This can be seen in the famous decision in Higgins v Butcher[15] (1607) where the judiciary remarked that “a wrongful cause of death amounted to a felony, for which no civil claim could be brought.[16] A Civil wrong, when interpreted alongside a felony, causes the felony to be ‘drowned’. It is thus apparent and well noted that Judge Ellenborough, by saying that death is of no compensation under Civil Law may have believed in the erstwhile stance that compensation for death is a concept under Criminal Law. Though the felony merger rule has been outmoded, the precedent based on such principles has not. This theory however lays on precarious ground. As Legal Historian Holdsworth puts it, it is a flawed stance that a civil crime is submerged by a felony and that the felony-merger rule of erstwhile times should survive and be cited in such a way in Baker v Bolton[17]


Baker v Bolton has long been outmoded and unused as a precedent due to the steady amount of criticism it has garnered both in Britain and India. Several exceptions, principles and cases have led to the demise and non-usage of this rule.

In Britain-

In Jackson v Watson[18] it was held that in matters of contracts and death due to its breach, the fact of the plaintiff’s death will be weighed and come into account. In the above-mentioned case, the defendant did not provide food suitable for consumption and the plaintiff’s wife died as a result. The plaintiff was given compensation for the loss of services and companionship of his wife, but the rule in Baker v Bolton was not followed. Upon the invention of the railway system, the number of claims for compensation from victims of the faults and negligence of the railway increased and the rule under Baker v Bolton simply could not stand in the face of this uproar. [19] A mechanism for compensation that streamlined pending cases involving such victims had to be established and thus the Fatal Accidents Act [20](Also, Lord Campbell’s Act) was created. This act in its principle does what the rule of Baker v Bolton cannot do.

In India-

 Baker v Bolton is not in use anymore with several courts criticising it for its lack of justification, insecure foundation and incorrect application of the maxim of actio personalis. Though this rule has not been outrightly discarded through legislative action or pronouncements, cases such as PUDR v state of Bihar[21], Sebastian M Hungary v UOI[22], and Bhim Singh v State of J&K[23] have deemed its stance to be ‘outmoded’ and have pointed out that since Britain doesn’t rely upon that case anymore, India is bound to discard it from our precedents and usage since it forwards a flawed concept disguised as a historical rule under Common Law.[24]


Baker v Bolton has thus gone out of the mainstream application in both Britain and India where the Fatal Accidents Act 1976 and 1855 respectively govern the quantum of compensation awarded in cases of death concerning tort. It is seen that the obiter dicta in Baker v Bolton, though on its face may seem unsubstantiated, has some precedent. The maxim actio personalis moritur cum persona coupled with the felony merger rule partially expounds it. Baker v Bolton’s view of death as an injury that would warrant no compensation under Civil Law except for the bare minimum has been outmoded by several cases and has created several exceptions and has been called a ‘considerable inconvenience’ and is not parallel with several statutory rules, inconsistent with the view that life has a value and incorrectly misappropriated to several principles. Hence Baker v Bolton is out of current usage but has not yet been overruled officially due to Legislative Inaction.

Author(s) Name: Meghaleena Mukherjee (Tamil Nadu National Law University (TNNLU))


[1] R.K Bangia, Law of Torts (25th edition, Allahabad Law Agency 2020) 391

[2] Ibid

[3] Baker v Bolton (1808) 1 Camp. 493 :10 R.R 734

[4] R.K Bangia, Law of Torts (25th edition, Allahabad Law Agency 2020) 401

[5] Baker v Bolton (1808) 1 Camp. 493 :10 R.R 734

[6] Anthony Grey, ‘Barclay v Penberthy, The Rule in Baker v Bolton and the Action for Loss of Services: A New Recipe Required’ (2014) 40 (3) Monash University Law Review, 920

[7] Ibid

[8] Ibid.

[9] Balbir Singh Makol v Sir Ganga Ram Hospital (2001) C.P.J 45 (N.C.)

[10] Sir Frederick Pollock, The History of English Law Before the Time of Edward I. (Cambridge University Press 1895) 56

[11] Anthony Gray, ‘Barclay v Penberthy, The Rule In Baker v Bolton and the Action for Loss of Services: A New Recipe Required’ (2014) 40 (3) Monash University Law Review, 933

[12] Sir Frederick Pollock, The History of English Law Before the Time of Edward I. (Cambridge University Press 1895) 56

[13] Anthony Gray, ‘Barclay v Penberthy, The Rule in Baker v Bolton and the Action for Loss of Services: A New Recipe Required’ (2014) 40 (3) Monash University Law Review,  928

[14] Ibid

[15] Higgins v. Butcher Yel. 89, 80 Eng. Rep. 61 (1607)

[16] Anthony Gray, ‘Barclay v Penberthy, The Rule in Baker v Bolton and the Action for Loss of Services: A New Recipe Required’ (2014) 40 (3) Monash University Law Review, 920-941

[17] Ibid

[18] Jackson v Watson (1909) 2 K.B. 193

[19] R.K Bangia, Law of Torts (25th edition, Allahabad Law Agency 2020) 397

[20] Fatal Accidents Act, 1976, § 1(1), Act No. 8372

[21] PUDR v state of Bihar A.I.R. 1987 S.C. 355

[22] Sebastian M Hongary v UOI A.I.R. 1984 S.C. 1026

[23] Bhim Singh v State of J&K. A.I.R. 1986 S.C. 494

[24] R.K Bangia, Law of Torts (25th edition, Allahabad Law Agency 2020) 402