Reining in the Rule in Baker v Bolton
While there seems no inclination either by the Courts or Legislature to abolish the rule in Baker v Bolton, it is suggested below that there is scope for further confining the ambit of the rule, and as a corollary, widening the circumstances in which third parties can recover their loss or damage resulting from negligently caused death. This could be achieved in Queensland by appropriate statutory amendment to the existing exceptions which currently allow recovery by dependents [i] , damages for loss of consortium [ii] and loss of servitium [iii] , the latter being limited to the statutory cap [iv] .
Since 1808 the common law has treated wrongfully caused death as “fatal” to an action , either by the deceased (the deceased’s estate) for a wrong done (tort) to the deceased, or to an action by a third party for damage consequent upon the wrongful death. The rule of the common law originated from the judgment of Lord Ellenborough in Baker v Bolton wherein he stated that “in a civil court the death of a human being cannot be complained of as an injury”. [v] Pigott B in Osborn v Gillett [vi] interpreted Lord Ellenborough’s reference to an injury as a reference to an actionable injury.
A concise statement of the rule in Baker v Bolton was more recently given by a majority of the High Court of Australia in Barclay v Penberthy as being “that the death of a person cannot constitute a cause of action giving rise to a claim for damages”. [vii] This rule has often raised the dictum that it is “far less expensive to kill than to maim”.
Despite early doubts about the rule [viii] and strident criticisms by legal writers [ix] as to the weight that should be accorded a principle advanced by a single judge in a nisi prius decision [x] , the rule has become entrenched in the common law [xi] and has as late as 2012, received judicial affirmation by the High Court as part of the common law of Australia. [xii]
Latham CJ in Woolworths Ltd v Crotty [xiii] stated with respect to the rule in Baker v Bolton and tort law that “ Accordingly, consideration of the application of the rule in Baker v Bolton to cases of tort shows plainly that there was room for remedial action by way of legislation[Lord Campbell’s Act and its equivalents] by giving a right of action for the benefit of some persons who had suffered damage from the death of another person caused by an act which was wrongful in relation to that person, but not wrongful in relation to other persons.” [xiv] (the parenthesis is mine).
This statement of Latham CJ would suggest that the reach of the rule in Baker v Bolton was not to situations where an independent duty of care was owed to a third party separate from the duty of care owed to the deceased victim. That is, the rule applied to prevent an actionable wrong arising both to the deceased victim and to any third party whose loss was collateral or parasitic upon the wrong done to the deceased (eg the action per quod servitium amisit [xv] ), but did not apply where there was an independent common law wrong against the third party.
Such an interpretation on the application of the rule in Baker v Bolton is supported by the mental harm cases where a plaintiff near relative of the deceased victim recovers damage for their mental disorder resulting from the negligently caused death of that victim.
In the mental harm cases there is an independent duty of care owed to the near relative by the defendant, separate from the duty of care owed to the deceased victim. The duty of care owed to the near relative can be expressed as a duty not to cause harm to the victim where it is foreseeable that a near relative may suffer a resulting mental disorder.
The rule in Baker v Bolton has not been invoked to bar any action by the near relative suffering mental disorder from the negligently caused death of the victim. For instance, in Chester v Waverley Municipal Council [xvi] where a mother witnessed her deceased child being removed from an unguarded municipal trench in which the child had drowned and the mother sued for nervous shock Latham CJ stated that “I am prepared to assume that the council was guilty of actionable negligence in relation to the child in leaving the trench in the condition in which in fact it was left. If so, the child, if he had been injured and not drowned, would have had a right of action for damages; if he had been an older person with dependants and had been drowned, his dependants would have had a right of action under the Compensation to Relatives Act 1897 N.S.W. (Lord Campbell’s Act)”. [xvii] This was the only reference to the rule in Baker v Bolton in the case.
An application of the rule in Baker v Bolton to bar recovery in the mental harm cases would have the astonishingly absurd result that a parent could recover for mental disorder caused by negligent injury to their child but not where the negligence has killed their child.
The High Court of Australia had the opportunity in Barclay v Penberthy to apply analogous reasoning [from the mental harm cases] whereby if a duty of care was owed independently to a third party to prevent pure economic loss to that third party by not negligently causing harm to the deceased victim (the latter in Barclay being a key employee of the third party), then the rule in Baker v Bolton had no application. The High Court, to the contrary, found that the rule in Baker v Bolton applied to prevent an action by the plaintiff whether based on the collateral action per quod servitium amisit (collateral to the duty owed to the deceased victim) or on an independent duty of care owed to the third party to prevent foreseeable economic loss to that third party by not negligently causing harm to the deceased victim. [xviii]
There are principled grounds for further legislative intervention to confine the rule in Baker v Bolton to an action by the deceased (the deceased’s estate) for wrongful death or to any action that is merely collateral or parasitic on the breach of duty of care owed to the deceased. Where an independent duty of care is owed to a third party to prevent foreseeable loss or damage from negligently caused harm to the deceased victim then the rule in Baker v Bolton should have no application.
While the rule in Baker v Bolton has been part of the common law for over 200 years, its longevity has more likely resulted from a reluctance on the part of judges to remove a restraint on litigation for accidental deaths, rather than any doctrinal or justice based fervour for the rule. Most judges have dismissed arguments for the rule’s removal by stating that such a move is a matter appropriately left for the Legislature. [xix] It is suggested that the Legislature does have scope to diminish the ambit of this anomalous rule.
Dr Norman Katter, (LL.B ,LL.M, PhD)
[i] Common Law Practice Act 1867 (Qld)
[ii] s58(1)(a) Civil Liability Act(Qld)
[iii] s58(1)(a) Civil Liability Act(Qld)
[iv] s58(2) and (3) Civil Liability Act(Qld)
[v] (1808) 1 Camp 493 (170 ER 1033)
[vi] (1873) L R 8 Ex at 92
[vii]  HCA 40 at para 1
[viii] Osborn v Gillett (1873) L R 8 Ex 88 at 96
[ix] See Holdsworth, History of English Law, 4th Ed (1935) vol iii ; Fleming J G The Law of Torts 3rd Ed (1965, Law Book Co, Sydney) pp. 628,629
[x] Osborn v Gillett (1873) L R 8 Ex 88 at 96 per Bramwell B
[xi] See eg Admiralty Commissioners v SS Amerika  AC 38
[xii] See Barclay v Penberthy  HCA 40
[xiii] (1942) 66 CLR 603
[xiv] (1942) 66 CLR 603 at 616
[xv] Barclay v Penberthy  HCA 40 at paras. 33-36
[xvi] (1939) 62 CLR 1
[xvii] (1939) 62 CLR 1 per Latham CJ
[xviii]  HCA 40 at para 24
[xix] See eg Barclay v Penberthy  HCA 40 at para 27