Why Bangladesh Needs Tort Law
Taqbir Huda writes for NYT/DOT :
From uncovered manholes to overhanging electric wires to negligent doctors, reckless drivers and callous employers- Bangladesh seems to be teeming with cases of negligence yet the law of tort remains alarmingly underdeveloped. This naturally creates a severe deficiency in the law for victims of negligence and other tortious acts but one which is seldom discussed and as such deserves our attention.
In order to understand the applicability and relevance of tort law to Bangladesh, we must first understand what the law of tort itself, is. ‘Tort’ is a word of French origin which was derived from the Latin term ‘tortus’, meaning twisted or crooked. So, etymologically a tort is a ‘wrong’ or a kind of crooked conduct. In law, it has come to be understood as a breach of duty leading to injury or damage to another. This is a general duty to not harm others without lawful justification or excuse which all members of a civilised community owe each other. It is precisely the breach of this duty by someone (without any lawful defence) that leads to liability in tort law, or rather tortious liabilty. Thus fear of incurring tortious liability can be an effective deterrent to careless or reckless behaviour by individuals or corporations. Tort law forces us to take into account the reasonably foreseeable consequences of our actions and how they may affect those who we do not otherwise owe a duty to. The landmark English case of Donoghue v Stevenson [1932] established a general test, where Lord Atkin memorably stated: ‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’. In explaining who in law is one’s neighbour, he said it is those persons who are ‘so closely and directly affected’ by one’s action that one ought to have them in contemplation as being so affected before one acts. The danger of not having such a duty was succinctly put by Brett MR in the earlier case of Le Lievre v Gould [1893]: ‘A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them.’
Now a tort must be contrasted from a criminal offence. While a tort is a civil wrong which is usually accidental or negligent, an offence, which is a criminal wrong; is usually intentional. This is not to say this distinction is easily maintainable in all cases since there can certainly be some overlap. Some acts might be both a tort and a crime and in those cases the victim need not chose between seeking justice in tort or criminal law, rather they are entitled to pursue both avenues of justice since they provide different legal outcomes. Tort law focuses on the victim and seeks to compensate one for the injury or loss suffered in so far as possible whereas criminal law focuses on the wrongdoer and seeks to impose punishments which would act as a deterrent to society as a whole. Criminal conviction usually results in imprisonment whereas a finding of tortious liability usually results in an order to pay monetary compensation know as damages. Usually, the evidential requirement or burden of proof is higher in criminal cases (beyond reasonable doubt) than it is in tort cases (on the balance of probabilities). So it may well be that a careless driver who ran over a pedestrian is found to be innocent in the criminal court but guilty of a tort (i.e. negligence) in the civil court, owing to the lower evidential threshold. Indeed this was the case in Bangladesh Beverage Industries v. Rowsan Akhter and Others (2016), which is a seminal advancement for tort law in our country since the Appellate Divison of the Supreme Court of Bangladesh awarded Taka 1.7 crores in damages to family members of a pedestrian who was killed by the negligent driving of Bangladesh Beverage’s employee. When the sole bread earner of a family is killed in a hit and run incident, imprisoning the offender does not serve adequate relief to the victim’s family. Seeing the wrongdoer go to prison may appease their moral conscience but it will not save them from their eventual destitution. This is where tort law plays a pivotal role in empowering victims of negligence to seek an alternative recourse to justice which can deliver a result that will be more practically beneficial to them.
Admittedly, Bangladesh does have some statutes which incorporate elements of tort law but they are seldom used by victims of negligence, perhaps owing to the lack of awareness as to their existence or the onerous costs and time lags inherent to civil proceedings. In the absence of a central piece of law which incorporates, systematises and emboldens the law of tort in Bangladesh, existing tort law will remain disparate and therefore largely ineffectual. It is high time we recognised the potential of tort law to promote ethical and conscientious behaviour in a country where there is wanton disregard for human life and the consequences of our actions (or inactions) on others.
Sub-Editor, The New York Times-Bangladesh National Section.
Email: taqbirhuda@gmail.com