Odger's English Common Law

DEFENCES. 495
The wife, husband, parent and child are entitled to share in
the damages awarded in the manner indicated by the jury. 1
If there be no legal personal representative, or if he will not
take action, any one of these beneficiaries can sue on behalf
of himself and the others.
In such an action the plaintiffs must prove that the defen-
dant was guilty of some wrongful act, neglect or default which
•caused the death, and that the death has caused pecuniary
loss to the plaintiffs arising from their relationship with the
deceased, not from any contract with him. Such damage is
of the essence of the action. Some appreciable pecuniary
loss must be shown to satisfy the provisions of the Act. 2 No
solatium will be awarded either for the pain and suffering of
the deceased or for the affliction of his relatives. 3 The
plaintiffs must prove that they had a reasonable expectation
of pecuniary benefit, had the deceased remained alive. 4
Thus a father cannot recover, either at common law or under Lord
^Campbell's Act, the funeral expenses to which he lias been put in
burying an unmarried infant daughter, whose death was caused by the
•defendant's negligence, and who was residing with her father at the time
of her death. 5
But in assessing damages in any action under this Act " there shall not
be taken into account any sum paid or payable on the death of the deceased
under any contract of assurance or insurance." 6
Defences.
As soon as the plaintiff has thus established a prima facie
case, it is incumbent on the defendant to bring forward his
defence. The defences most frequently raised to an action of
negligence are
—
(i.) Accident.
(ii.) Vis major •.
(Hi.) Contributory negligence.
1 But see Dickinson v. N. E. By. Co. (1863), 2 H. & C. 735 ; Wood v.. Gray f
JSons, [1892] A. C. 576 ; Stimpson v. Wood (1888), 36 W. B. 734.
2 Duckworth v. Johnson (1859), i II. & i\. 653.
s
•
Blake v. Midland By. Co. (1852), 18 Q. B. 93.
Hetherington v. N. E. By. Co. (1882), 9Q. B. J>. 160.
5 Osborn v. Gillett (1873), L. R. 8 Ex. 88 ; approved in
JSeneral Omnibus Co., Ltd., [1906] 2 K. B. 648.
6 Fatal Accidents (Damages) Act, 1908 (8 Edw. VII. c. 7), a. 1.
Clarh v London