Limited Application of Tort Law in Bangladesh: Should We Be Concerned?

A Mercedes car ran over a rickshaw nearly killing a 13 year old boy and the sole reason behind the accident was negligence on the 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 hand.

This is a hypothetical case, but such unfortunate incidents happen in every corner of our streets every day. If something similar happened in the United Kingdom or in the United States, 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. So 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 about you, or even if someone entices your wife away.

These are not just some theories that have never been put into practice. In 1992, one Stella Liebeck, 79 year old woman, suffered third-degree burns in her pelvic region after accidentally spilling hot coffee, bought from McDonald’s Restaurant, on her lap. She was hospitalized for 8 days due to the burn and underwent skin grafting. She needed medical assistance for two more 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 and awarded Liebeck $2.86 million.

In another interesting case, Janvier v 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 number coming out successfully.  A rigorous search of the law reports reveals only about half a dozen reported successful tort law decisions (I thank Dr. Ridwanul Hoque for this information).

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 neighboring countries, including Sri Lanka, Nepal and India. The reasons for the limited application of tort laws in Bangladesh are manifold. At the front of these reasons is the striking odds of receiving a favorable judgment as the statistics of only six successful tort decision suggests. Until and unless both the bar and the bench come forward to practice and popularize tort cases by delivering more successful cases, the possibility of more extensive application of tort law will remain bleak.

Salvia Jannat thanks Emraan Azad, Khaled Saifullah and Preeti Kona for their comments and suggestions on an earlier draft of this article.

Citations:

Salvia Jannat, “Limited Application of Tort Law in Bangladesh: Should We Be Concerned?”  (DHLR Blog, 1 October 2014) http://www.dhakalawreview.org/?p=375

Salvia Jannat Member since September 17, 2014

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Salvia Jannat is a passionate editor and a mooter. She was an editor of a club annual magazine in her college. Before joining Dhaka University law school in 2014, Salvia volunteered as a tutor at the Autism Welfare Foundation. While not busy with the law school and law review responsibilities, Salvia bakes cheesecake and cooks Thai dish.

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