A mother was holding her one-year-old in her arms in front of the house. Suddenly, a flowerpot fell from another building’s rooftop on the face of the baby. Isn’t that terrifying?
Well, this is a hypothetical case. But it can be said in reality, such unfortunate incidents happen every single day in our society. Apart from Bangladesh, if something similar happened in the UK, US, or Canada, the accused person would absolutely be liable to pay compensation.
But in Bangladesh, we hardly see justice, or the ensuring of compensation payment decided by the court. But why? Perhaps our justice system is still lagging behind to ensure the compensation of tort law. Also, it is worthy of mention that the implementation of tort law is not very thorough in Bangladesh.
On January 11, 2019, Abdullah, a 16-day-old baby, died in a heartbreaking accident as a brickbat fell on his head in Mirpur-1 area of Dhaka. The deceased’s aunt Tamim Sultana was standing in an alley in front of their tin-shed house, holding him in her arms.
A three-year-old child accidentally dropped a piece of brick from the rooftop of a building beside the alley while playing with other children around 10am, said Dadan Fakir, the officer-in-charge of Mirpur Police Station. The baby was rushed to Dhaka Shishu (Children) Hospital at Sher-e- Bangla Nagar and was then referred to Dhaka Medical College Hospital (DMCH), where he died around 1:30pm.
According to Prothom Alo, Mirpur Model Police Station OC has said: “It is an accident. If a child under seven does any offense, it will not be treated as offense. So, there is no scope to take any legal steps.”
It is the case that the accused person is a minor (three years old), who is an infant, and is therefore manifestly incapable of exercising any of the qualities necessary to the perception of risk. So, the accused is not able to assess the standard of care needed.
Also, the accused has not yet attained age of majority. So, he or she is incapable of foreseeing the probable consequences of their actions, unlike an adult. Furthermore, the standard of care also depends on age, intelligence, and experience which the accused doesn’t have. So, it might be said that the child is not liable.
But what does tort law say? If there is damage done, there is an amount of compensation to be paid. In this case, serious damage has taken place. Now, the matter of concern is: Who is responsible, or who is going to pay compensation?
In this situation, naturally, the question comes: At the time of the cause of action, were the parents present there? If so, why didn’t they stop their child from throwing a piece of brick, and what were they doing at the time? It is very common that children do not like to be restrained within four walls of a room. Parents should have the responsibility, and do their duty of supervising the child.
In this circumstance, they could have used reasonable care. But they didn’t do so. That is why they might be liable for independent negligence, and parental liability should be imposed, as they were irresponsible and not performing their duty towards their child.
Also, there is a huge possibility or risk that a child might develop risky or dangerous tendencies and habit in the future if proper take is not taken by parents at an early age.
In LaBonte v Federal Mutual Ins Co159 Conn 252, 256 (Conn 1970) it is said: In common law, parents were not liable for the torts of their children unless they themselves were independently negligent, as where they had entrusted a dangerous instrument to their children or had failed to restrain their children who they knew possessed dangerous tendencies. Though the case law doesn’t match directly with the aforementioned tragic accident, it might still be applicable.
Critics may argue, in common law (followed by Bangladesh), the torts of children do not impose vicarious liability upon parents. As tort law differs from jurisdiction to jurisdiction, the decision might differ from state to state also.
But if something happens here in Bangladesh, it would indeed be unfair, dangerous, and irresponsible towards the public to permit such activities to continue, and there needs to be a mechanism of deterrence in place.
Shahriar Bin Wares is a student of law.