Purpose of Tort Law: Bangladesh Prospective 

Abstract

In Bangladesh, Tort Law has so far remained neglected. In this term paper I will endeavour to outline what the intended purpose of tort law is in the Bangladeshi legal system. This paper mentions the historical development of Tort Law. The paper also explores some recent case reviews. This paper will give a flash of some theoretical aspects of Tort Law that I studied in this course. Finally this paper consists conclusion according to my point of view.

Introduction

Tort is an interesting branch of law which provides for compensation, often in the form of money, for damage which cannot be assessed by any fixed formula. So it leaves for the court to decide on the best compensation scheme on a case by case basis. Threatening and causing of physical injury, incidents of medical negligence, malpractice by lawyers, defamation by libel or slander, and above these all the road accidents, are some of the news that we are so used to reading in the newspapers in the morning with a cup of tea falls under the category of Tort. The matter of law of tort is a far cry in Bangladesh . Although, every other civilized country has equipped themselves with proper sets of laws to deal with cases coming through such events, we are still far from an alternative. The main purpose of Tort Law in Bangladesh is to redress the victim in monetary terms insofar as possible.

Objective

The principal object of this paper is to present the purpose of Tort Law in Bangladesh. To accomplish this object the following specific objects have covered :

• To give the definition of Tort Law
• To give an overview of the historical development of tort
• To explore the recent cases regarding Tort in Bangladesh

Methodology

The term paper has been prepared based on secondary data. Different websites has been visited to write the definition of Tort, historical background of Tort Law, the laws regarding tort in Bangladesh. And even books has been used to complete this paper.

History and Definition of Tort

The term Tort is a French word. It has been derived from the Latin word “tortum”, which means twist and implies twisted or tortious conduct. Roman law contained provisions for torts in the form of delict, which later impacted the civil law jurisdiction in the continent of Europe. The word “Tort” was first used in legal context in the 1580s in France.

Many writers had given many definitions to define Tort. But among them the definition which worth nothing is the one given by Salmond. He defines Tort “civil wrong for which remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation”. Another best definition of Tort was given by Winfield who states “Tortious liability arises from the breach of the duty primarily fixed by law, this duty is towards persons generally and its breach is redressible by an action for unliquidated damages”. There is another good definition of Tort was given by Underhill. In his summary “A tort is an act or omission which is unauthorized by law and independently of contract infringes either

1. Some absolute right of another or b. Some qualified right of another causing damage or c. Some public right resulting in some substantial and particular damage to some person beyond that which is suffered by persons generally.
2. Gives rise to an action for damages at the suit of the injured party.

Types of Torts

There are basically three types of torts: intentional torts, torts based on negligence and strict liability torts. An intentional tort is a civil wrong that occurs when the wrongdoer engages in intentional conduct that results in damage to another. Striking another person in a fight is an intentional act that would be the tort of battery. Striking a person accidentally would not be an intentional tort since there was no intent to strike the person. This may, however, be a negligent act. Careless conduct that results in damage to another is negligence. The intent element of these torts is satisfied when the tortfeasor acts with the desire to bring about harmful consequences and is substantially certain that such consequences will follow. Mere reckless behaviour, sometimes called willful and wanton behaviour, does not give rise to the level of an intentional tort. If a person commits an intentional tort, this means that he intentionally violated a legal duty he owed to the victim. This is different from a negligent tort, in which the tortfeasor violated the duty that every member of society has to exercise reasonable care in their actions with others. The distinction between an intentional tort and a negligent tort is important for several reasons. First, if an individual wants to sue for an intentional tort, he must prove that the tortfeasor acted with 'intent.' This is a separate legal requirement that the plaintiff must fulfil, in addition to proving all the other facts of the case and proving actual damage. Strict liability, sometimes called absolute liability, is the legal responsibility for damage, or injury, if the person found strictly liable was not at fault or negligent – the injured party is not required to prove fault – liability is strict. An example of strict liability is injury caused by wild animals in the care of the tortfeasor; because the tortfeasor owns tigers, the tortfeasor is responsible for any injury, without the need for the injured party to prove negligence.

The Purpose of Tort Law in Bangladesh

In Bangladesh under penal code, civil procedure code, criminal procedure code there are short application of tort law. The purpose of tort law is to restore someone who has been injured as a result of the wrong of another to the condition they were prior to the injury by awarding them monetary damages which will pay for medical expenses, lost wages and compensate for physical and mental pain and suffering as a result of their injuries. Beyond this, however, is the role that tort law plays in punishing the misconduct of corporations and individuals who cause harm to others through negligent misconduct. There is group of torts, as trespass to the person, which purpose is to focus on personal integrity and the issue of individual privacy. Tort law also recognizes the interests and responsibilities of land owners, seeking to balance the right of a landowner to use his land as he wishes, against the right of neighbours to expect landowners to operate and maintain their land in a reasonable manner. Other torts protect both personal and business reputations. “Torts” can occur in various ways. Most of such cases occur due to unawareness and lack of intent on the part of the offender. The purpose for introducing tort law in Bangladesh is strong, as it stands to improve a lot of the damage and loss of life being dealt through negligence.

People who are victims of tort can claim compensation on the grounds of pain and suffering, lost wages, earning capacity, and other medical reasons, but, again, no legal provisions are in place for anyone to do so.Assault, battery, false imprisonment, intentional infliction of emotional distress, fraud, deceit, trespassing, defamation, accidents, and more fall under tort law. And in a country like Bangladesh, where such incidents are incredibly common and frequent, tort law would prove to be indispensable. Incidents related to tort can happen through intention or negligence. The offender is liable under various laws such as the Fatal Accident Act 1885, Civil Procedure Code 1908(CPC), Criminal Procedure Code 1898(CrPC), Penal Code 1860, Transfer of Property Act 1882, and the constitution. The victim of tort may get their remedy under these laws But it is very difficult for the victim to receive any sort of compensation or justice under the current laws. If a codified tort law existed in Bangladesh, the process will become much smoother. Some other purposes can be fulfilled if we can enforce tort law in Bangladesh:

• Road accident: Bangladesh Bureau of Statistics (BBS) in its annual publications provides data relating to road accidents. The statistical Year Book (2000) contains figures from 1987 to 2000. The total number of the accidents took place during this period of time is 1521 in 1987 to 3419 in 2000, a rise of 125 percent from 1987 to 2000. The number of injured was 1988 in 1987 which rose to 2653 in 2000, a rise of 33%. This is an issue of major concern. Most of the accidents happened because of the negligence of the driver. The driver or the owner exempted from giving compensation the individual victim. So, by applying the law of torts the victim can be compensated by the defendant.
• Unlawful arrest: The clause 1 of article 33 of the Bangladesh constitution states that no person who is arrested shall be detained in custody without being informed, as soon as may be , of the ground for such arrest nor shall he be denied the right to consult and be defended by illegal practitioner of his choice. Again clause 2 of the article (33) says that every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the core of the magistrate and know such person shall be detained in custody beyond the same period without the authority of magistrate. But this laws have failed to prevent unlawful arrest and another purpose law of torts is to prevent the arrest.
• Hartal and blockades: Last year we have continuous hartal blockades. Hartal and blockades fall under wrongful confinement. There is no such statute or law in our country which can get us rid of wrongful confinement. No action is also when we get wrongfully confine during hortal and blockades. So we can claim for tort when we get wrongfully confine during hortal and blockades.
• The Workmen Compensation Act, 1991: There is a provision for compensation to defendants as defined in the section 2 of the Workmen’s Compensation Act, 1923 for a workman’s death resulting in the course of employment out of a course of employment. But this act is not implemented properly. Another purpose is to compensate them.
• Consumer’s right: The demand for a self certain consumer production legislation began in the early 80’s last century. The civil society and various organizations who promote various consumer rights raised their voice. The chapter began on the 6th April 2009 with the adoption of the Consumer Rights Production Act 2009 as a comprehensive legislation in the parliament. Articles 18 and 15 of our constitution have served as the basement upon which the Act has been formulated. The purpose of Consumer Rights Production Act 2009 is to define standards and to formulate procedures to promote and protect consumer interest In its preamble the Act states: “It extends well beyond the mere protection of economic interest of the consumers, to become part of a mere general social policy on consumer affairs”. But a close analysis shows that the act has failed to develop the prevailing system. By implementing tort laws we improve the existing system.
• Wrong done by Bureaucrats and Autonomous bodies: As per law nobody has the right to injure others intentionally or innocently. Now-a-days, in most cases, the public getting injured by the wrongful acts of the bureaucracy and their instrumentalities, agencies and other bodies like- banks, financial institutions, other utility service provides etc. By enforcing tort laws people can get rid of the wrong doings by the bureaucrats and autonomous bodies.
• Gas leaking incidents: In Bangladesh people suffer because of gas leaks. Bangladesh people face many problems because of gas leak in several times. If we look back in 2006, due to negligence of Canadian gas exploration company Naiko, to explosion and a fire incident in the Tangratila gas field. Due to this gas leak many people suffer much. The victims of this incident could have claimed for tort. To reduce this kind of incident is one of the purpose of Tort Law.
• Refrain to move: According to the article (36) of Bangladesh constitution, “ Subject to any reasonable restriction imposed by law in the public interest, every citizen shall have the right to move freely throughout Bangladesh, to recite and settle in any place therein and to leave and re-enter Bangladesh “, But few months ago the opposition political leader was wrongfully confined in her own house. She could have claimed tort for confining her wrongfully if there was enforce ability of law of tort.

Some Recent Cases

Catherine Masud vs Md. Kashed Miah and others:

This is a case of private law tort. It is significant because it was the first case filed under Section 128 of the Motor Vehicle Ordinance, 1983. which provides for the existence of Motor Accident Claim Tribunal. However, the case was then transferred from the tribunal of Manikganj to the High Court Division on the basis of a petition made by the claimant under Article 110 of the Constitution. The fact is that on 13.08.11, the deceased Tareq Masud along with nine others was returning from Manikganj to Dhaka in a microbus. When the microbus arrived at a place named “Joka” on the Dhaka Aricha Highway, a collision took place between the microbus and a bus named “Chuadanga Deluxe Paribahan” coming from the opposite direction. As a result of the accident, five passengers of the microbus suffered instant death and all the surviving passengers were taken to the hospital. Several important issues were considered by the court. The court allowed compensation on six grounds.

At the time of death, the deceased was 54 years old and had an income of Tk. 2,50,00 per month. The court upheld the claim of one hundred month’s salary on account of the loss of dependency on his wife and child. The total amount was Tk. 2,50,00,000.

The court further allowed Tk. 10,00,000 on account of the loss of dependency on the mother of the deceased.

The court allowed Tk. 2,00,00,000 on account of the loss of love and affection of the wife and children of the deceased. The court cited the amount given in the Bangladesh Beverage case and raised it a bit in order to pay respect to the downward trend in the purchasing power of money.

A compensation of Tk. 25,452 was allowed on account of the medical expenses of Catherine Masud who was injured in the accident.

A compensation of Tk. 1,00,000 was allowed on account of the funereal expenses of the deceased.

A compensation of Tk. 50,000 was allowed on account of damage to the property.

The total amount of compensation reached to Tk. 4,61,75,452 out of which the insurance company was liable to pay Tk. 80,000, the driver Tk. 30,00,000 and the liability for paying the rest was equally divided between the two bus owners.

CCB Foundation vs Government of Bangladesh:

This is a case of constitutional tort. The CCB Foundation filed a writ petition under Article 102 of the Constitution. The fact of the case concerned a well-known incident that took place in the Shahjahanpur Railway Colony of the capital. A four-year-old boy named Zihad, while playing in the Shahjahanpur Railway Colony playground fell inside the 16 inches uncovered shaft which was left abandoned by Bangladesh Railway and WASA authority. The whole nation watched with a sense of anxiety as the rescue operation by Bangladesh Fire Service was being broadcasted across the nation.

After hours of effort, the fire service finally put end to the operation and came to the observation that there was no one inside the pipe despite eye-witnesses to the contrary. The dead body of the boy was then pulled up by a group of volunteers via a handmade device in a considerably lesser amount of time. In delivering the verdict, the judges dealt with a few important issues. as to the quantum of the compensation, the court observed that where there is an infringement of fundamental rights, the High Court Division has the discretion to fashion the amount of compensation according to the circumstances of particular case. BDT 20 lakh compensation was fixed by the court of which Bangladesh Railway and Bangladesh Fire Service and Civil Defense would each pay BDT 10 lakh.

Recommendation

As we know the main purpose of Tort Law is to afford compensation to a person whose legally protected rights has been violated by another person. There are some other purposes also. But the main problem is tort law has not introduced in Bangladesh yet. There are short application of Tort under penal code, civil procedure code, criminal procedure code. So, to fulfill the purpose of Tort Law we have to enforce the law in Bangladesh. We need to make legal provisions separately for tort law.

Conclusion

In Bangladesh, we have ignored to introduce the law of Tort in our legal spectrum. We need specific codification of the law of Tort which can ensure not only ‘access’ to justice but insurance to ‘justice’. If we ensure codification of the law of Tort, then we will be able to fulfill the purpose of Tort Law in Bangladesh.

Reference

1. Dr. A B Siddique, The Law of Tort, (6th Ed.) Kamrul Book House, Banglabazar, 2012(Chapter 1 at 15-17)
2. G. S. Pande, Law of Torts, (3rd Ed.) Allahabad Law Agency, Faridabad, 1997(Chapter 1 at 2-4)
3. Sadman Rizwan Apurbo, “Development of Tort Law in Bangladesh and recent case decisions”(bdlawdigest. Org) http://bdlawdigest.org/tort-law-in-bangladesh.html accessed 28th October, 2019
4. Delwar Hossain, “Why do need Tort law”(Dhaka tribune, 2019)< https://www.dhakatribune.com/opinion/op-ed/2019/02/07/why-we-need-tort-law accessed 28th October, 2019
5. Tort(Banglapedia, 2019) accessed 28th October 2019
6. Aqib Tahmid, “Presentation on problem of applications of Tort in Bangladesh”,(academia. Edu, 2019)https://www.academia.edu/31071403/Presentation_On_Problems_of_application_of_tort_law_in_Bangladesh_Course_Title_Law_of_torts accessed 28th October 2019
7. Introducing Tort in Bangladesh (law lecturesheet. Blogspot. Com, 2011) http://lawlecturesheet.blogspot.com/2011/01/blog-post.html?m=1 accessed 28th October 2019
8. Platform for Tort Law (The daily star, 2018) https://www.thedailystar.net/law-our-rights/law-vision/platform-tort-law-1530388 accessed 28th October 2019