(i) Burial

If the person who is ultimately responsible for arranging the burial of the deceased^[1] is not able to do so, it will be necessary for somebody to intervene and make the necessary arrangements. The reason why the necessity principle applies in such circumstances was identified in Rogers v Price^[2] as arising from ‘[the] common principles of decency and humanity, the common impulses of our nature . . . and to do that which is immediately necessary upon the subject in order to avoid what, if not provided against, may become an inconvenience to the public’. In such circumstances the person who incurred the expenditure or provided professional services is entitled to be reimbursed or remunerated by the defendant who was under a duty to arrange the burial. This is illustrated by Jenkins v Tucker^[3] where the deceased had died whilst her husband was in Jamaica. The deceased’s father arranged for his daughter’s funeral and was able to recover the expenditure incurred from her husband because he had ‘acted in discharge of a duty which the defendant was under a strict legal necessity of himself performing, and which common decency required at his hands . . . ’.^[4] Although today there is a statutory right of restitution which is applicable where a local authority is obliged to bury or cremate a person, whereby the authority can recover the expenditure incurred from the deceased person’s estate,^[5] the old cases at common law continue to be a very good illustration of the recognition and application of the doctrine of necessity in a restitutionary context.

Where the claimant has arranged for the burial of the deceased, restitution of expenditure will only be allowed if two conditions are satisfied.

• (1) The claimant who made the arrangements for the burial must have been a proper person to respond to the necessity. This may be a parent,^[6] a sibling,^[7] or even a professional undertaker, so long as he or she was engaged by an appropriate
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person.

(2) The benefit which the claimant provided must have been reasonable. So, for example, the claimant would only be able to recover expenditure which he or she had incurred in arranging for the funeral if it was reasonably incurred. An important factor which indicates what might be reasonable expenditure is to consider what the defendant would have paid for the funeral, considering his or her rank and fortune.⁴⁸

• [1] Today this is the personal representative of the deceased (Rees v Hughes [1946] KB 517), but the husbandused to be responsible for the burial of his wife (Jenkins v Tucker (1788) 1 H Bl 91, 126 ER 55). Where a childdies a parent is probably responsible for arranging the burial.
• [2] (1829) 3 Y and J 28, 34; 148 ER 1080, 1082 (Garrow B). 2 (1788) 1 H Bl 91, 126 ER 55.
• [3] 43 Ibid, 93; 57 (Lord Loughborough). 4 Public Health (Control of Disease) Act 1984, s 46(5).
• [4] 45 Jenkins v Tucker (1788) 1 H Bl 91, 126 ER 55.
• [5] 46 Bradshaw v Beard (1862) 12 CB (NS) 344, 142 ER 1175.
• [6] 47 Rogers v Price (1829) 3 Y and J 28, 148 ER 1080 where the undertaker was appropriately engaged by the
• [7] defendant’s brother. 48 Jenkins v Tucker (1788) 1 H Bl 91, 126 ER 55.