In this modern era, a country is known for a well-organized legal system, a society is lighted by the courteous behaviour of its people or civility and a spontaneous legal system is recognized with its dynamic applause of rules and regulations. The salient purpose of rule of law is to establish justice without interrupting the rights of other individuals. Tort law, a, significant branch of law, discusses the civil wrongs where the injured party can ask for remedy and the compensation is unliquidated here. The application of Tort law is absent in some countries while it is dealt with explicitly in other countries. Again, the advanced nations have codified laws in this regard as a civilized country will surely have a strong encampment of tort laws. This paper will provide a clear concept of tort including its application in the legal system of Bangladesh and some other countries also.
Definition of Tort
Tort, in a general sense, means a breach of duty acknowledged under the law of torts. The word ‘Tort’ is originated from a Latin word named ‘Tortum’ which implies any conduct or action that is twisted, unlawful or crooked. The word tort was used for the first time in an English case, Boulton v. Hardy, 1597Cro.Eliz 5. Salmond elucidates tort as,” a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation.” Salmond has rightly distinguished the law of torts from breach of contract or breach of trust. Tort is the violation of right in rem not the impeachment of right in personam. Unlike contract, the duties are primarily fixed by law in tort. In addition, the damages in case of breach of trust are liquidated whereas the damages in a tort are unliquidated in nature. Unliquidated damages refer to such kind of compensation which was not previously ascertained. Accurately, there is no probability of such presumption until the legal right of a party is violated or injury happens. Thus, tort can be elucidated as a civil wrong other than a breach of contract or breach of trust, redressed by unliquidated damages.
Several Kinds of Torts
The basic principles of tort laws were developed through the practice of common law. A large number of torts including trespass, assault, battery, negligence, nuisance, defamation, malicious prosecution, vicarious liability and strict liability exist. For instance, when a person commits the act of publishing a statement to defame another person, he can be held liable for defamation. When a person is restricted from moving in any direction without lawful justification, he can seek remedy as absolute restraint of freedom is regarded as false imprisonment under law of torts.
Tort Laws in Bangladesh under the existing laws
There has been no tort law regime in Bangladesh. However, some torts can be enforced under the enacted laws, for instance – Penal Code 1860, The Fatal Accidents Act, 1855, Civil Procedure Code and Bangladesh Constitution.
Penal Code,1860: The code of law known as the Penal Code governs offences and crimes as well as the punishment for committing crime. Sec 352 states that whoever assaults or uses criminal force to any person otherwise than on grave and sudden provocation given by that person, shall be punished with imprisonment of either description for a term which may extend to three months or with fine which may extend to five hundred taka or with both. Sec 352-358 provides punishment for assault or criminal force. Sec 44 of Penal Code, 1860 provides a definition of injury. As per sec 44, Penal Code, 1860, the word “injury” denotes any harm whatever illegally caused to any person, in body, mind reputation or property. Sec 268 of Penal Code further demonstrates public nuisance. Sec 268 states that a common nuisance is not excused on the ground that it causes some convenience or advantage. Sec 499-502 also provides provisions regarding defamation and its punishments.
The Fatal Accidents Act,1855: According to this act, if a person has passed away owing to an accident, a family member may file a lawsuit against the responsible authority or a person claiming compensation. This suit is purely tort in nature. However, the main defect of this act is that it only applies to the deceased person’s family members.
Civil Procedure Code, 1908: Sec 91 of Civil Procedure Code, 1908 states that in case of a public nuisance, even if no specific harm has been done, the Attorney General or two or more persons who has taken the consent of Attorney General in writing may file a suit to obtain a declaration , an injunction , on other remedy that may be appropriate under the circumstances. At present , the Courts are free to grant relief of any kind in the light of the inherent authority granted by sec 151 of the aforementioned act.
Bangladesh Labour Act, 2006: Under chapter VII, section 79-88 of the Bangladesh Labour Act, 2006, some particular measures regarding the employer’s health and safety are guaranteed. This law mandates that workers should be informed of any operations that could be dangerous or detrimental to their health. Women workers are not allowed to operate risky machines in close proximity to them. The clause regulating the safety in the eyes of the workers is mentioned in section 75 of this act. Additionally, it forbids employees from performing tasks where the vapors are likely to catch the fire without safety precaution.
Bangladesh Constitution: Article 44 and 102(1) of Bangladesh Constitution provides provision regarding constitutional tort. Comparatively speaking, constitutional tort is a modern judicial tool that the higher judiciary uses to hold the State vicariously liable. The fundamental rights of a citizen granted by the constitution, violated by a local authority or government servant or employee is regarded as constitutional tort. It is an act or omission that explicitly or implicitly violates constitutional provisions relating the fundamental rights of citizen for which the party who is harmed is entitled to claim legal redress in the form of damages. For the enforcement of any of the fundamental rights granted by part III of the constitution, an aggrieved party may file a writ petition under article 102 (1) against any person or entity including any person performing any function in connection with the affairs of the Republic. In the case of Bangladesh Beverage Industries Ltd. v. Rowsan Akhter,69 DLR, 129 in a money suit brought by the family of a journalist who was killed in 1989 by the reckless driving of company’s delivery van driver, the defendant Corporation was compelled to pay 1.7 crores in damages. The deceased’s wife battled the court battle nonstop for 24 years. In 2016, the Appellate Division finally awarded monetary compensation against the company by holding them vicariously liable.
The assertion that Bangladesh lacks tort law is not entirely accurate. The provisions relating tort law in Bangladesh are dissipated in some acts. But unfortunately, the number of these scattered tort laws existing in the enacted laws are few in number. Our country urgently needs tort claims because the perception of our desirable living standard is low and steadily declining. The government is indifferent to examining such requirements unless something devastating occurs.
Recent Developments so far
The significant branch of law that deals with the remedies that anybody may be entitled to claim for the suffering of an injury caused due to any wrongdoing committed by any private individuals or public authorities was being treated with less importance that it was common among the lawyers to treat it as though there had been no practice of tort law in Bangladesh. Things are improving now, though thanks to the judges, academicians and lawyers for growing their interest. Recently the supreme court of Bangladesh reached decisions in two significant cases involving tort law.
Catherine Masud v. Md Kashed Miah and others, 67 DLR 527
This case is a private law tort case. It is noteworthy as it was the first case brought under section 128 of the Motor Vehicles Ordinance, 1983. On the basis of a petition filed by the claimant under article 110 of the constitution, the matter was subsequently transferred from the Tribunal of Manikganj to the High Court Division. The Court examined a number of distinct issues. The motor vehicle Ordinance of 1983’s applicability to the case was the first point of contention. The Court noted that it was clear from section 4 of the validating act that the act had a retrospective effect. Therefore, the assertion that the ordinance was ineffective at the time the case was filed was false. In addition, the Court found out that the owners would be held vicariously liable because they were aware that the bus lacked the certificate of fitness. And the Court largely used the case Beverage Industries Ltd v. RowsanAkhter, 69 DLR 129 while determining compensation. Six grounds were used by the Court to allow compensation.
CCB Foundation v. Government of Bangladesh, 278 5 CLR (HCD) (2017)
This case involves constitutional torts. In accordance with Article 102 of the Constitution, the CCB Foundation filed a writ petition. The fact of this case is related to the occurrence that happened at the capital’s Shahjahanpur Railway Colony. A four-year boy fell inside the 16 inches uncovered shaft left abandoned by Bangladesh Railway and WASA authority. The CCB Foundation being a non-profit organization took necessary initiatives against this kind of negligence. Several distinctive issues arose including the locus standi of the petitioner. One important maxim, ‘Res Ipsa Loquitur’ was also applied in this case. The Court granted 20 lakh compensation which both the Bangladesh Railway and Bangladesh Fire Service and Civil defense would pay. These two cases may contribute to the emergence of constructive change in the practice and development of tort law in Bangladesh. Article 32 of the Bangladesh Constitution deals with the protection of right to life and personal liberty which comes under the fundamental rights mentioned in Part III. With the indulgence of article 32, the public may use it and file a claim for damages following a road accident as the procedures of the Road Transport Act, 2018 are complex in nature.
Application of Tort Laws in some other Countries
India: The practice of tort law in India was evolved through significant case laws. The administration of tort law follows principles of justice, equity and good conscience and is entirely governed by English law. However, before enforcing any common law norms, Indian Courts could determine if it was appropriate for their society or not. There was a time when the number of tort litigation was very few in number. The lack of awareness of one’s rights, also the high cost of litigation beyond the capabilities of common people can be held responsible for the scarcity of tort law applications in India. However, at present the approach of Indian Courts towards this kind of litigation is praiseworthy. They are formulating new rules, and norms. For instance, the Supreme Court itself, while formulating the rule in M.C. Mehta v. Union of India, A.I.R. 1987 S.C. 965, referred the liability recognized there as absolute liability and expressly said that such liability would not be subject to any exceptions recognized in Rylands v. Fletcher (1868) L.R. 3H.L.330.
Singapore: Because Singapore was once a British colony, its tort law is largely influenced by English law. The law governing negligence is largely based on English Law and adheres to the same basic ideas. However, there are several places where the policies established by the UK courts have been departed. Singapore has the Contributory Negligence and Personal Injuries Act (1953) where contributory negligence is recorded. The principle laid down by Lord Atkin in the case of Donoghue v Stephenson is also followed by the legal system of India and Singapore. The Defamation Act, passed in 1965, contains the provisions for the current defamation laws in Singapore. There are clear similarities between this statute and its Indian counterpart despite differences in its provisions and terminology. There are two types of defamation in Singapore similar to India. Libel is defined as the publication of a defamatory or false statement in a permanent form without lawful excuse or justification. The other type is “slander,” which is a spoken statement that is false and defamatory. In the matter of liability, the law in Singapore is rather static in nature and there are no distinct types of liabilities that have been formed under Singaporean civil law. Here, Joint liability is recognized, all those who participated in the act are held jointly accountable for it if a tort is committed by more than one person. The Singapore tort law system is not found to include the concepts of strict liability or absolute liability. Furthermore, there are no clauses specifying when strict obligation or liability applies. Singapore’s legal system is found to be deficient in this area.
Nepal: Like other countries, Nepal also included some provisions regarding tort laws in their National Civil Code. Chapter 17, Part 5 of National Civil (Code) Act, 2017 (2074) is related with the provisions of tort laws in Nepal. Though the provisions do not wholly cover the arena of tort law, the amalgamation makes a difference for the people who are still indifferent to the practice of tort law in their countries.
This paper has attempted to uphold the significance of tort law and its application in Bangladesh compared with other countries. The provisions of tort law are not entirely absent here. The judges and lawyers can make this stoic branch more progressive with their opulent interpretation in cases. Academicians should also contribute more and more to enrich this arena and make people aware of its application. In addition, the law makers should also give it a thought with a view to making the provisions unswerving for the general people. Despite the fact that there are several provisions in various acts or ordinances related to tort laws, codification of tort laws by aggregating all the aspects of tort has become a necessity. For its wide application, the Legislature should enact a new act that will cover various diversity of torts and available remedies.