1958Present: PuIIe, J., and Sansoni, J.
P. MEINONA et ah, Appellants, and P. UPARIS, RespondentS, 0. 246—D. G. Tangalla, 6,525
Prescription—Negligence—Death caused thereby—Right of the dependant* of thedeceased to claim compensation—Period of limitation—Prescription Ordinance(Cap. 55), ss. 9,10> 24.
An action for pecuniary loss suffered by the dependent wife and children of aperson killed by the negligent act of the defendant (or his servant) is barredafter two years from the date of the death cf the deceased. In such a case,,section 9, and not section 10, of the Prescription Ordinance is applicable.
£a.PPEAL from a judgment of the District Court, Tangalla.
Sir Lolita Rajapakse, Q.G.. with C. V. Ranawake, for the plaintiffs-appellants.
N. E. Weerasooria, Q.C., with W. D. Gunasekera, for the defendant-respondent.
Cur. adv. mill.
1 (1952) 54 N. L. B. 121.
(1957) 58N.L.B. 313.
PULLE, J.—Meinona v. Uparis
October 17, 1958. Ptjxle, J.—
The appellants in this action are the widow and three children of oneN. L. Brampy Appuhamy who was knocked down and killed on 18thJune, 1953, by a station wagon belonging to the defendant and drivennegligently by his servant. They instituted the action from which thisappeal arises on 5th October, 1955, claiming a sum of Rs. 10,000 ascompensation for the loss sustained by them as dependants of BrampyAppuhamy who at the time of his death was their sole means of support.On all the issues save one the learned trial Judge found in favour of theplaintiifs but having held that the action had not been commenced, interms of section 9 of the Prescription Ordinance, within two years from thedeath of Brampy Appuhamy he was constrained to dismiss it with costs.The question for decision is whether the period of limitation is the onefixed by section 9 or, as argued on behalf of the appellants, by section 10.The minority of the 4th plaintiff did not make any difference because,if the action fell within section 9, he could not take advantage of therelief provided .by section 14.
A considerable portion of time was devoted by learned counsel for theappellants to an examination of the Fatal Accidents Acts (9 and 10 Viet.0 93 and’27 and 28 Viet. C 95) and some decisions thereon to emphasizethat the cause of action which accrues to the wife and children of a personkilled by the negligent act of a defendant is distinct and separate fromthe cause of action which gave to that person, before his death, a rightto sue for damages for the tortious act. The distinction is so clear thatit is not necessary to elaborate the reasons for making it. Salmond on theLaw of Torts (1953 ed. p. 396) says,
“ Nevertheless the cause of action conferred upon the relatives of thedeceased by the Act is a new cause of action, and not merely a conti-nuance of that which was formerly vested in the deceased himself.It is ‘ new in its species, new in its quality, new in its principle, inevery way new ’ ’’J
in regard to a claim on account of patrimonial loss Morice on Englishand Roman-Dutch Law states (2nd ed. p. 238);
“ But while the heirs had no action for damages, an action for com-pensation accrued to the wife, children and other relations of thedeceased who had been supported by his labour. The action was fordamages to the living relatives, not to the deceased’s estate. (Voet,9, 211; Grotius’ Introd., 3, 33, 2; VahLeeuwen, Comm. 4, 34, 16;Vander Linden Inst. 1, 13, 2). The Roman-Butch law as regardsdamages for death thus closely resembles the English law as changedby Lord Campbell’s Act. ”
Following upon this distinction it was submitted that the period oflimitation should not be the same as in the case of a person who files anaction to recover damages for bodily injury suffered by him as a result
1 (1884) App. Gases 59 at 70.
P17LLE, J.—Meinona v. Uparis
“f an. act of negligence. It is conceded that that would be an action inlort to which section 9 of the Prescription Ordinance would apply.It is urged that while in the present case the commission of the tort isthe first in the historical sequence of facts constituting the cause of action,the action itself is not one in tort and, therefore, it would not attractthe provisions of section 9. I do not think that the point which fallsto be determined on this appeal is solved by answering the questionwhether the action is one in tort or not. The answer must be found on aconsideration of the language of section 9 which reads,
“ No action shall be maintainable for any loss, injury, or damage,unless the same shall be commenced within two years from the timewhen the cause of action shall have arisen. ”
In Dodwell db Co., v. John1 Shaw, J., expressed the opinion that,
“ the section is intended to apply to actions in respect of tortsgenerally, and includes an action for wrongful conversion, as has beenalready decided in this Court in the case of Williams v. Baker ‘5, the causeof action in such a case being for the loss and damage sustained by theplaintiff in consequence of the wrongful act of the defendant. ”
Pereira, J., did not take the view that an action for wrongful conversionwas covered by section 9. He said,
“ I cannot help thinking that what is contemplated here is an actionfor, or rather in respect of, some physical injury or damage caused,or for loss accruing from such cause, and that is, perhaps, the reasonwhy the section is excluded from the operation of section 15.” (newsection 14).
The Privy Council in the same case 3 disagreed with the view that anaction for wrongful conversion was not prescribed in two years. Thejudgment states,
“ Their Lordships think that the words used are to be interpretedas covering a conversion, and not as in their meaning restricted topersonal loss, injury or damage, and that an action for a conversionwould therefore be barred after two years from its cause. ”
Although the tort for which the defendant was responsible did not untilthe death of the deceased give to his dependants a cause of action, never-theless the tort is the foundation of the claim of the plaintiffs and theloss suffered flowed directly from the tort, which was the causing ofbodily injury to the deceased by the negligent driving of the motorvehicle. Thus applying even the restricted interpretation placed onsection 9 by Pereira, J., it seems to me that the action is barred after twoyears from the death of the deceased.
On the question whether the compensation claimed by the plaintiffsis covered by the word “ loss ” or “ injury ” or “ damage ”, I derive 1
1 (1915) 18 N. L. E. 133.s
* (1918) 20 N. L. E. 206 at 212.
(1888) 8 S. O. C. 165.
T. S. FERNANDO, J.—de Silva v. Amarasekera
some assistance from the observations of Viscount Simon, L. C. inGrofton Hand Woven Harris Tweed Co. v. Veitch1 on the contrast between“ damage ” and “ injury He says,
“I shall try to distinguish between ‘ damage ’ and
‘ injury following the stricter diction, derived from the civil law,which more especially prevails in Scottish jurisprudence. So used,
‘ injury ’ is limited to actionable wrong, while ‘ damage ’, in contrastwith injury, means loss or harm occurring in fact, whether actionableas an injury or not. ”
On this reasoning it seems to me that the pecuniary loss suffered bythe plaintiffs on the death of the deceased constitutes the “ damage ”within the meaning of section 9 of the Prescription Ordinance and that,therefore, the present action is out of time. The appeal fails and mustbe dismissed with costs.
Sansosti, J.—I agree.
P. MEINONA et al., Appellants, and P. UPARIS, Respondent