Development of Tort Law in Bangladesh and Recent Case Decisions

Focus Keyword: Tort Law in Bangladesh

The private law tort is applied in Bangladesh under the common law and civil law jurisdiction. A suit for private law tort can originally be filed in the appropriate civil courts and tribunals. On the other hand, constitutional tort is applied under the joint effect of Article 44 and Article 102(1) of the Constitution. When the statutory authority is liable for the violation of the constitutional rights guaranteed in part III of the Constitution, a writ petition claiming compensation can be filed in the country’s constitutional court holding the state responsible.

It can be said with a fair amount of certainty that almost all law students of Bangladesh invariably face troubles understating the term ‘tort’ while approaching their course on Tort Law course for the first time. They find it quite peculiar and unheard of, thanks to its relative unfamiliarity in comparison to other domains of law. It lays bare the fact that unlike other fields of law, the field of tort still, in most part, remains an uncharted territory in Bangladesh. Unfortunately, such an important branch of law which deals with the remedies that any person can claim for his suffering of an injury by any wrongful act committed by other individuals or public authorities is being treated with such(disregard) that there is a propensity among the lawyers to completely disregard it as having no application in Bangladesh. However, with an increasingly keen interest shown by a few lawyers, academicians and judges, things are looking up lately.

Recently, the Supreme Court of Bangladesh has decided two important cases concerning the law of tort.  Before moving to a brief summary of these cases, a distinction should be made clear between private tort and public/constitutional tort. Tort is mostly understood as falling under the rubric of private law where the parties at dispute are private individuals. However, when the tortfeasor is a public official, a suit for tort can be filed under public law. It should also be remembered that it is still possible to hold responsible any public official under private tort but the process is fraught with a lot of complexities and therefore, the prospect of winning such litigations is somewhat bleak.^[1] The distinctions between these two types of torts can be summarized as below-

• In case of private tort, the defendant can either be a private individual or a public official but in case of constitutional tort, the defendant is always a public official^[2]
• In case of private law tort, the liability arises from common law norms whereas in case of constitutional tort, the liability arises from the constitutional norms^[3]
• In the context of Bangladesh, in case of private law tort, the pecuniary jurisdiction of the court depends on the value of the suit which renders the process much more lingering whereas public law tort is free from such blemish.^[4]

Mechanism for the enforcement of tort law

The private law tort is applied in Bangladesh under the common law and civil law jurisdiction. A suit for private law tort can originally be filed in the appropriate civil courts and tribunals. On the other hand, constitutional tort is applied under the joint effect of Article 44 and Article 102(1) of the Constitution. When the statutory authority is liable for the violation of the constitutional rights guaranteed in part III of the Constitution, a writ petition claiming compensation can be filed in the country’s constitutional court holding the state responsible. Here again, however, a distinction between public law compensation and constitutional tort must be made but for the sake of brevity and relevance of this article, this discussion can be dispensed with. Now that the distinction is clear between private and public law tort, it would be easier to understand the implications of these recently decided cases in the development of tort in Bangladesh. Let us have brief review of these two cases.

Case reviews

1. 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^[5] 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 collusion 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.

Firstly, the question arose as to whether the Motor Vehicle Ordinance of 1983 would be deemed as legally non-existent on 13.02.2012, when the case was filed on the effect of the judgment of 7th amendment case^[6]. The judgment declared all proclamations and ordinances made between 24.03.1982 and 11.11.1986 to be unconstitutional which was hinged on the question as to whether the subsequently enacted Validating Act of 2013 had any retrospective effect. The court observed that the preamble of the validating act read with Section 4 left no doubt open as to the fact that the act had retrospective effect. So, the claim that the ordinance was inoperable during the filling of the case was untenable.

Again, the respondent made an objection as to the maintainability of the case by pointing out that the tribunal while receiving the application did not comply with the provision of the ordinance which required mandatory examination of at least one of the claimant on oath. However, after assessing the provision, the court concluded that examining the claimant is not mandatory but discretionary under that provision.

Secondly, the question arose as to whether it was the bus driver’s fault that caused the accident and whether the owners would be held vicariously liable. Both the parties brought their witnesses who were examined and cross-examined. However, there were discrepancies among the accounts of the witnesses brought by the defendant. Moreover, the bus driver did not have any valid driving license and the bus itself had no fitness certificate either. After examining the witnesses, the court was convinced that the bus driver was driving the bus recklessly through the wrong lane. The court went further and concluded that since the owners had the knowledge about the absence of fitness certificate of the bus and valid driving license of the driver, they would be held vicariously liable.

Thirdly, the issue was whether the liability of the insurance company would be limited in the sense that it would not pay for anything except what it had specifically agreed to. The court answered the question positively relying on some of the cases of Supreme Court of India where it was held that in absence of a specific contract or payment of a higher premium to that effect, the liability of the insurer cannot be expanded.

Fourthly, as to the quantum of compensation, the court largely relied on the case of Bangladesh Beverage vs Rawshan Akhter^[7] where it was held that loss of dependency can be quantified but compensation for pain, suffering, agony and loss of expectation of life can only be in lump sum and not on calculation. The court allowed compensation on six grounds. The grounds are mentioned below-

1. 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 of his wife and child. The total amount was Tk. 2,50,00,000.
2. The court further allowed Tk. 10,00,000 on account of loss of dependency of the mother of the deceased.
3. The court allowed Tk. 2,00,00,000 on account of 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.
4. A compensation of Tk. 25,452 was allowed on account of the medical expenses of Catherine Masud who was injured in the accident.
5. A compensation of Tk. 1,00,000 was allowed on account of the funereal expenses of the deceased.
6. 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.

2. 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 which 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.

Firstly, the question arose as to whether the petitioner had the locus standi. The judges answered this question positively with reference to a few cases where conditions were established as to what rendered a person capable of being recognized as ‘any person aggrieved’ according to Article 102 of the Constitution. The CCB foundation being a non-profit and charitable organization with an ambition to organize legal assistance, support groups comprising of victims of social, political and human rights crime, perfectly fulfilled those conditions.

Secondly, the question arose as to whether the authorities were negligent. Since this question involved multiple parties, the question of each of their negligence was examined separately. First, the civil defense was negligent because despite its huge investment in buying modern equipment, it failed to buy a single high-tech camera to rescue people in any pipe or hole. Both the fire service and civil defense denied having any expertise in such cases but this mere statement was incapable of relieving them off their public duties and liabilities. Moreover, both of these authorities abandoned the rescue mission making a statement that there was nothing in the pipe and the fact that a group of untrained volunteers subsequently were able to rescue the dead body of the boy served as a perfect foil to the negligence on part of both the authorities.

Second, in order to prove the negligence of the Railway Authority, two important doctrines of tort were applied. ‘Res Ipsa Loquitur’ means the thing speaks for itself. In this case, this doctrine was applied in the sense that in absence of a negligence, there was nothing that could explain as to why the boy fell into the pipe. The Railway Authority conceded that there was negligence but tried to divert the liability on the contractors. However, this very contrivance failed as the court used the doctrine of vicarious liability to hold the Railway Authority liable.

Thirdly, the question arose as to whether a claim for compensation can be made against any public authority. It was observed by the court that Article 146 of the Constitution of Bangladesh does not make any distinction between sovereign and non-sovereign act and thus, the claim for compensation against any public authority is not barred by the Constitution.

Fourthly, 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.

Implications of these cases

These two cases which are significantly different in terms of substantial and procedural law will help set forth a positive trend in the development of tort law in Bangladesh. The first one is a case of private law tort where the claim for compensation was granted against the driver, owners and insurer of the bus company and the second one is a case of public law tort where the claim for compensation was granted against the government. Private law tort can be used as an instrument to get compensation from other private individuals for any injury which admits of tortious liability. It can be used to get compensation in cases of tortious acts like defamation, trespass etc. done by private individuals.

On the other hand, public law tort can be used as an instrument to get compensation from the government authorities in cases of tortious liability like wrongful confinement by the law enforcement agencies, death from the negligence of government authorities etc.

Conclusion

Everyday, we see people suffering injuries and deaths in road accidents, construction sites like that of flyovers and bridges etc. due to the negligence of the concerned authorities. Thus, in light of a marked increase in road accident cases and the perennial nature of the occurrences of deaths by the negligence of government authorities, such development in tort law will be instrumental in providing the bereaved families with financial assistance which, although, will not be able to make amends for the loss suffered completely, will at least facilitate the families to deal with the financial deficit that follows such deaths.

^[1] See Haque, Ridwanul, Public Law Compensation in Bangladesh: Looking within and beyond, Journal of Law and Development, Vol. 01, No 2, July 2009

^[2] See Park, James, The Constitutional Tort Action as Individual Remedy, Harvard Civil Rights and Civil liberties Law Review, Vol. 38, No. 2, Summer 2003

^[3] ibid. p. 13

^[4] See Para 73 of CCB Foundation vs Government of Bangladesh 5 CLR (HCD) (2017)

^[5] Haque, Ridwanul, Law of Tort, Class lecture, University of Dhaka

^[6] Siddique Ahmed vs Government of Bangladesh, Civil Appeal No.48 of 2011.

^[7] Bangladesh Beverage Industries Ltd. vs Rawshan Akhter and others, 2010, 39 CLC (HCD) [7279]