Witnessing the death of a son: Potential claim of psychiatric injury
Barrister Afrin Islam writes for DOT :
The recent death of Abrar Ahmed Chowdhury has left us afflicted with sorrow and grief. A criminal case has been filed in the Gulshan Police Station by Arif Ahmed Chowdhury, the father of the deceased. Parallel to the criminal case an action under tort law can be filed against the bus company for monetary compensation. At the moment what we want is to recover a handful amount of compensation because sentencing the driver of the bus only will not serve the purpose entirely. It is a mandate to claim compensation from the owners of these buses so that next time when they appoint someone as a driver, they ensure that the drivers are well trained and working in a stable state of mind.
Reportedly, the father of the deceased was present on the spot and he has witnessed the worst incident of his life; watching his dearest son squeezed in the middle of two buses. This might bring a claim for psychiatric injury as secondary victim because the accident caused by the negligence of the driver might had given the father a serious nervous shock through witnessing the event. The driver was clearly negligent as he was racing with another bus and he ran over the deceased on Zebra crossing, where a pedestrian is supposed to cross safely. Time has came to recognize psychiatric injury or mental shock. Where a person faces physical injury, a claim is possible for the pain and suffering along with the medical and travel expenses. The pain and suffering of a father who is watching his son dying because of some extreme negligent attitude of two drivers and can’t help, is nothing less than physical injury. The difference is only we can’t apparently sense the injury through our eyes. However, the courts in recent cases have recognized the claim of a secondary victim in Bangladesh. To prove the psychiatric injury as a secondary victim, the claimant must be in a close and loving relation ship with the primary victim. In case of parents and children the loving relation ship is presumed. The claimant must have perceived the event on his own and he must have suffered through an immediate sudden impact on his or her senses. Importantly, the injury should be a medically recognized psychiatric illness. The incident which left the whole nation shocked and brought tears to every eyes who even read the news. It is simply imaginable how tremendous the effect can be on the father who witnessed his own son in such a tragic incident.
The owner of the bus company must be vicariously liable for employing such ill-trained drivers who race with another bus of the same bus company in the street to get more passengers. The driver was in the course of employment and might have been ratified by the owners expressly or impliedly. The profit goes to the company not the driver, the driver must have been instructed to attract more passengers which resulted a reckless racing.
It is mandatory now to bring claim under tort law because this is a regime where the actual perpetrator can be brought under action and damages can be well-calculated. Only criminal action is not sufficient; as monetary compensation can not be claimed under criminal law and within a few months the perpetrators of this young man will be free to go on bail and the case will be continued for years. If we claim a compensation for all the distress, pain and suffering that the father along with the family is suffering at the moment only then we can actually compensate the victims and assure further vigilance.
Afrin Islam, Barrister at Law; Advocate, Supreme Court of Bangladesh