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বাংলা
Dhaka Tribune

Tort law: A basic remedy we are missing

Update : 20 Mar 2015, 06:04 PM

A Mercedes ran over a rickshaw nearly killing a 13-year-old boy and the sole reason behind the accident was negligence on part of the car driver. The rickshaw-puller asked for compensation, but the car driver denied giving him any. Instead, the rickshaw-puller was blamed and beaten for the whole incident, and was left with a broken arm.

This is a hypothetical case, but such unfortunate incidents happen in every corner of our streets every day. If something similar happened in the UK or in the US, would the Mercedes owner go unpunished and the rickshaw-puller uncompensated? The answer would be in the negative, even for the trivial accidents. So what is it that makes their system so responsive and ours not?

It is the day to day application of tort law. 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. Thus, it leaves for the court to decide on the best compensation scheme on a case by case basis.

The range of wrongs for which the law of tort provides remedy is as interesting as diverse. It allows you to sue for compensation if a restaurant negligently serves you unhygienic food and you suffer from diarrhea as a result, if someone enters into your house without permission, if someone slaps you in anger, if someone spreads vile rumours about you, and even if someone entices your wife away.

These are not just some theories that have never been put into practice. In 1992, Stella Liebeck, a 79-year-old woman, suffered third-degree burns in her pelvic region after accidentally spilling hot coffee, bought from a McDonald’s, on her lap. She was hospitalised for eight days due to the burns and underwent skin grafting. She needed medical assistance for two years.

Liebeck claimed that McDonald’s coffee was too hot (82°–88°C) and as such, more likely to cause injury than other coffee served at lower temperatures. The jury found against McDonald’s and awarded Liebeck $2.86 million.

In another interesting case, Janvier vs Sweeney, a private detective, pretending to be a police officer, threatened a woman that she was in danger of arrest for association with a German spy. The detective bluffed with an intention of accessing the correspondence of her employer. The woman suffered psychiatric illness as a result of this statement, and the court awarded her compensation.

Such incidents are not very rare in our society, but you would not find a similar case even after searching the length and breadth of all law reports published since the independence of Bangladesh. Wrongs which could have been remedied by the application of tort laws go unattended by the court day in and day out.

One of the most striking examples would be the Rana Plaza collapse of last year, which caused 1,129 deaths and approximately 2,515 injuries. Though the Rana Plaza building was constructed for offices and shops, it was lent out to garment factories. Eventually, it failed to hold on to the weight and vibration of heavy garment machineries and collapsed.

That the collapse was a result of negligence on the part of the relevant regulatory bodies as well as the building and garment factory owners has been mentioned widely by the experts and the media. What, however, has not been done is holding the authorities and owners responsible for their negligence under tort law.

Since the independence of Bangladesh more than 40 years ago, we have seen only a handful of tort cases going to the court, and astonishingly fewer numbers coming out successfully.  A rigorous search of the law reports reveals only about half a dozen reported successful tort law decisions.

Though many of the core legislations including the Penal Code 1860 and the Code of Civil Procedure 1908 have codified principles of tort law, incidents like Rana Plaza collapse remind us that there still remains a legal black hole and we are often being let down by the limited or non-application of tort laws.

The law of tort has been adopted by many countries worldwide. It is in wide practice in many of our neighbouring countries, including Sri Lanka, Nepal, and India. The reasons behind the limited application of tort laws in Bangladesh are manifold. Main reason being the striking odds of receiving a favourable judgement as the statistics of only six successful tort decisions suggest.

Until and unless both the bar and the bench come forward to practice and popularise tort cases by delivering more successful cases, the possibility of extensive application of the tort law will remain bleak. 

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