M. Jashim Ali Chowdhury
Assistant Professor, Department of
Law, University on Chittagong, Bangladesh
Published in Law Vision (Issue 11: 2012-2013), pp 43-49, Published by the Department of Law, University of Chittagong, Bangladesh
1.
Introduction of the Law of Tort in British
India
The fascinating
branch of Law of Tort is evolved, developed and nourished rather than made or enacted.
In Hindu and Muslim legal systems, tort had a place and scope much narrower
than it had under the English Common Law. The first English courts established
in this subcontinent were the Mayor’s Courts in three Presidency towns of Calcutta,
Madras and Bombay. These courts were mandated ‘to give judgments and sentences
according to justice and right.’[1]
The English judges therefore drew upon the English Common Law and Statute Law
as found suitable to the genius of this region. Thereafter the Supreme Courts
were substituted for Mayor’s Courts which again were substituted by the High
Courts in three Presidency towns but the jurisdiction to administer the English
Common Law were continued. Even the local courts were instructed to follow the
rule of ‘Equity, Justice and Good Conscience’ where no local laws or customs were
available. Later on, the Privy Council interpreted that applying ‘Equity, Justice
and Good Conscience’ would extend to the application of Common Law and English
Statutes where situation permitted.[2]
Even after the termination of British domination, it has been held here that
Section 9 of the Code of Civil Procedure, 1908 which enables a Civil Court to
try all suits of a Civil Nature, impliedly confers the jurisdiction to apply
the Law of Tort as principles of Justice, Equity and Good Conscience.[3]
2.
Does Bangladesh have any Law of Tort?
In contrast to
criminal law (in which the offence is against the State and the State is the
plaintiff), the offence in tort law is against a person and that person is the
plaintiff. We call it a ‘civil wrong’
which attracts a common law action calling for un-liquidated damages rather
than punishments. Damages is un-liquidated because it is usually not
pre-supposed, pre-determined or pre-prescribed by any provision of law. And all
these explain why vast percentage of the Law of Tort is un-codified and un-enacted
and dwell on the discretion of the court rather than on the inks and
pens of statute. Hence the students of Bangladesh often ask a very usual
question, ‘Does Bangladesh have any Law of Tort?’ This is a question
resembling very much to the one we face in the classes of British Constitution
- Does Britain have a Constitution?
Both the questions, it is submitted, are based on the misconceived
notion of law - where it is seen as an instrument to be produced in a visible
form. In this sense, the Constitution and the Law of Tort are
meant to be something like a People’s Charter or an Act of
Parliament which of course are missing in Britain and Bangladesh
respectively. But thinking from another side of the arguments, both the British
Constitution and
Page 44
the Bangladeshi Law of Tort are a complex amalgam of
institutions, principles and practices, precedents, usages and traditions. It
is not one document but hundreds of them.[4]
The recent trend is to deal with the separate branches of Tort within
separate statutory frameworks. Many of our statutes have tried to address and
accommodate various forms of tortuous behaviour in different fashions –
sometimes these are made criminal offence and some other times civil remedies
are provided. The High Court Division as well exerts a substantial role in
redressing tortuous behaviour in exercise of its writ jurisdiction. But very
often, these remedies appear grossly inadequate and too nominal. Hence, it is felt
by a good number of people[5]
that without reliance on statutory provisions, pressing damages as a tort claim
purely on equitable ground is quite unlikely in Bangladesh. Therefore the students
think if Bangladesh has got any Law of Tort at all or not.
3. The Tortuous
Behaviours and their placement in our laws
As a wrongful behaviour Tort
may affect one’s Person, Property and the both. As per Section 44 of the Penal
Code, 1860 the word ‘injury’ denotes any harm whatever illegally caused to any
person’s body, mind, reputation or property.
Torts affecting the victim’s
person may relate to his body (e.g., Assault, Battery), his freedom (e.g.,
False Imprisonment), his reputation (e.g, Defamation) and both his
reputation and freedom (e.g., Malicious Prosecution or Civil Action,
Abuse of Legal Process etc).
Torts affecting the victim’s property
may relate to his incorporeal or personal property (e.g., violations of patent,
trademark, trade name, copyright, easement rights, reversionary rights etc),
his immovable property (e.g., Trespass, Dispossession, Waste, etc), and his
movable property (e.g., Trespass, Conversion, Detention, etc).
Torts affecting both the
person and property of the victim include Nuisance, Negligence, Fraud, etc.
Assault and Battery - Any gesture
calculated to excite in the person threatened a reasonable apprehension that
the person threatening intends immediately to offer violence, or in the language
of the Penal Code, is ‘about to use criminal force’[6],
if coupled with a present ability to carry such intention in execution, constitute
an assault in law. The intention as well as the commission of the act makes it
a battery.[7]
Chapter XVI of the Penal Code (Sections 349-358) deals with the use of criminal
force and assault, whereas Sections 299-338 deal with widest possible range of
offences affecting the body and life of persons, unborn child and infants.
However, while criminal proceeding against the wrongdoer is sanctioned by Penal
Code, a civil action claiming damages for these attacks is missing in
Bangladesh.
False Imprisonment – False
imprisonment is a total restraint of liberty which may be actual, physical or
constructive, by show of authority, say for example telling someone that he is
wanted and he must accompany him. The Code of Criminal Procedure 1898, the
Special Powers Act 1974, the Metropolitan Police Ordinance 1986 and various
other Acts of Parliament
Page 45
provide a wide range of powers
upon the police to arrest and detain individuals. Under Section 43 of the Code
of Criminal Procedure 1898, a private individual may arrest and handover the
detainee to the police. Sections 339 to 348 of the Penal Code deal with a range
of wrongful restraints and confinements. Sections 359 to 374 cover unlawful
deprivations of personal freedom in the form of abduction, kidnapping, slavery
and forced labour. Some safeguards provided in Article 33 of the Constitution
of Bangladesh seek to prevent arbitrary arrest and detention of individuals. Violation
of these may result in an action for constitutional remedy under the writ of habeas
corpus. Section 561 of the CrPC may also come to aid. However both the
remedies fail in providing remedies in terms of damages in tort. They extend
only to an order of release of the person detained unless in an exceptional
exercise of discretion the Court decides otherwise. So far in only one case,
the High Court Division ordered a compensatory cost to the victims.[8]
Negligence - A
liability for negligence arises only when the accused owed a duty of care to
the plaintiff. This duty may be imposed either by law or by a reasonable
expectation of care.[9] Reasonable
expectation arises from a reasonable foresee-ability of injury.[10] Again,
the duty of taking care resides on the basis of forseeability, not on the basis
of proximity between the plaintiff and defendant.[11]
Under Sections 284-89 of the Penal
Code, 1860 the custodian of poisonous substance performer of rash or negligent
work, negligent builders, custodian of animals etc have subjected to punishment
for negligence in dealing with their affairs. Apart from the Penal Code
provisions, the carriers of passengers and goods are subjected to legal duty of
care.[12]
The directors of a company, agents, physicians and surgeons, bankers, counsels,
authorities dealing with fire, fire arms, fireworks and explosive substances, poisonous
drugs, other dangerous articles[13]
are made subject to varying degree of liability for negligence. However, all
these are fixed by statute as nominal fines coupled with punishments in
appropriate cases. These being the statutory ceiling, the Courts enjoy a very little
discretion to go beyond these to offer any equitable damages to the victims.
Defamation - Defamatory
statement is one which tends to injure the reputation of the plaintiff. Whether
a statement is defamatory or not depends upon how the right thinking members of
the society are likely to take it.[14] Section 499 provides at least
ten excuses that may mitigate the liability for defamation. It requires that besides
being true, the imputation must be shown to have been made for public good. The exception no 9
provided in Section 499 of the Penal Code covers the judges, counsel, pleader,
witnesses and parties to a suit under certain terms and conditions.[15] Article
78(3) of the Constitution indemnifies a Member of Parliament in respect of
anything said by him in Parliament or in any
Page 46
committee thereof.[16] For the
journalists, columnists of print media and discussants of talk shows in
electronic media, even disclosure of truth in good faith may not be available
as a defence.[17] Regarding
the defamation in cyber space, the Information and Communication Technology
Act, 2006 treats them as criminal offence. There punishments of lighter/severe
form have been fixed.[18]
Malicious Prosecution - Malicious prosecutions
is an unsuccessful prosecution terminated in favour of the defendant and it is
found that the proceeding was brought against without any reasonable or
probable cause. Such a wrongful use of judicial proceeding may cause damages to
his reputation, person or property and is condemned by the Statute Laws of
Bangladesh. Section 95 of the Code of Criminal Procedure allows a remedy to the
defendant to get compensation. Section 35A of the Code of Civil Procedure also
allows compensatory cost in favour of the sufferer. Apart from these, statutes
like the Women and Children Oppression (Repression) Act 2000 has made wrongful
prosecution a punishable offence. Even where no statutory remedy is available,
the sufferer may decide to go for action of defamation.
Trespass to Immovable property
- This tort is committed by entry upon land, by remaining there and
thereafter by doing act affecting the sole possession of the plaintiff. The
Penal Code deals with a range of trespass issues. Sections 297 and 441to 462 of
the Penal Code, 1860 provides punishment for various categories of trespasses
including house breaking, criminal trespass etc. Sections 8 and 9 of the
Specific Relief Act 1887 provide remedy against dispossession. Remedies like temporary
and permanent injunction, negative injunction and mandatory injunction are made
available therein. The Code of Civil Procedure allows the landlord a suit for
ejectment, mesne profit and profit prendre.[19]
To deal with trespass by animals, the Cattle Trespass Act 1871 is there.
Trespass to Goods - Trespass to
goods is termed as tort of Conversion as well. Conversion takes place by wrongful
taking, by parting, by selling, by keeping and by destruction. The provisions
relating to theft in the Penal Code deal with the punishment of criminal
trespass to goods in the forms of theft, extortion, robbery, dacoity, criminal
misappropriation of property and receiving stolen property etc.[20]
Taking of Goods in cases of distress, however, may be covered by Sections 27-30
of the Sale of Goods Act 1930.
Nuisance - Nuisance means an unlawful interference with a person’s use or enjoyment
of land, or some right over, or in connection with it. Nuisance is of two
types: (i) Public
or common nuisance (ii) Private nuisance, or tort of nuisance. Public
nuisance is interference with the right of public in general and is punishable
Page 47
as an offence, for example,
obstructing a public way by digging a trench. Such obstruction may cause
inconvenience to many persons but none can be allowed to bring a civil action
for that. Public nuisance
can be subject to only one suit and that is under Section 91 of the Code of
Civil Procedure. The Attorney General or on his permission two or more persons
may initiate a suit for damages. If any private individual wants to sue he must
show some special damages more than what other peoples have suffered.[21]
In such cases the individual concerned first have to recourse to
the municipal or local corporations and public bodies having the power to abate
such nuisance. Failure on their part may lead to petition for writ of mandamus
under Article 102 of the Constitution.[22]
Besides, the
concept of Representative Suit finding place in Order I Rule 8 of the Code of
Civil Procedure may be resorted to.[23]
Private Nuisance includes acts
leading to (a) wrongful disturbances of easements or servitudes; or (b)
wrongful escape of deleterious substances into another’s property, such as
smoke, smell, fumes, gas, noise, water, filth, heat, electricity, disease germs,
trees, vegetation, animals, etc. Sections 268 -294A of the Penal Code covers 11
types of public nuisances including environment, food and health contaminating
activities. Apart from the Penal Code, the Specific Relief Act provides an
array of judicial remedies in terms of mandatory, prohibitive, temporary and
permanent injunction.
4. The Grey
Areas of Law of Tort
Unacceptable impunity for public
servants, service providers and autonomous bodies – The news of
wrong treatment, lack of service from local bodies, utility providers, arrest
and torture of innocent persons etc are very frequent in Bangladesh. But there
is no visible remedy in the justice system of our country. To proceed
against a public servant, including
the military, air and naval stuff, a prior application for consent from the
government is required. A list of the public servants so entitled is
given in Sections 13, 14 and 21 of the Penal Code, 1860.
The Anglo-American legal system based on the medieval common law theory
‘King can do no wrong’ has paved the way for the theory that Crown or State
cannot be sued without its consent. But the English theory of King doing no
wrong, it is argued, is basically attributed to the person of the King.
Therefore, it is not conceivable, how in Bangladesh, in absence any monarchy,
the executive becomes entitled to such a privilege. Here the executive is not
the sovereign and the legislature is within its constitutional limit. Therefore,
public policy now requires that the State submit to the jurisdiction of
judicial tribunals to answer for torts committed by its officers against the
person or property of its citizens.[24]
Page 48
Inadequacy of Consumer Protection - A new
Chapter began on 6th April 2009 with the adoption of the Consumer Rights
Protection Act 2009 as a comprehensive legislation. But a close analysis shows
that the Act, containing so many loopholes, has failed to develop the existing
system. The Act provides that any complaint concerning defective product
resulting in substantial financial or physical damage must be filed within 30
days. If pondered over the fact, we can see there are many long-term effects
which cannot be identified readily after using the products. 30 days time span
is thus too short a scale. Thus the Act has failed to keep up with
reasonableness and medical science.[25]
Section 71(1) of the Act stipulates that no individual can make any complaint
about violation of consumer rights to the court of a 1st class
magistrate or the CMM. Thereby the people are placed at the mercy of the
Council for enforcing the rights given to them, which would ultimately prove to
be a nugatory.
Inappropriate
dealing with Medical Negligence
- As the law on tort of negligence is uncodified in
the form of statute, criminal cases are filed against medical negligence under
the provisions of Penal Code. But it cannot be appreciated as a proper way
because these provisions are applicable not only in the field of medicine but
to other professions as well. The main problem of proceeding under the Penal
Code is that it says nothing about the principles as to how the duty of care
should be determined, what the standard of care is and how damages should be
proved.[26] Recently,
however, the Law Commission of Bangladesh has undertaken a project to develop a
comprehensive draft on Medical Negligence.
The underdeveloped accident jurisprudence
- In
Bangladesh most of the naval accidents happen because of the negligence of the
launch and motor vehicle operators and their owners. Whenever any launch
accident occurs basically the government pays minimum amount as compensation to
the victim in case of death. In road accident cases, given the silence of law,
usually the owner of the vehicle comes to an agreement with the victim’s family
in terms of some monetary compensation.
In road accidents, Section 304B of
the Penal Code governs the field which states that whoever causes the death of
any person by rash or negligent driving may be imprisoned for maximum
three years, or may be fined, or may be subjected to both. This is so where the
death does not amount to culpable homicide. If it becomes a culpable homicide,
there may be life imprisonment or death penalty.[27]
But since the expression ‘rash or negligent driving’ does not presuppose
the existence of a killing intent in the driver, a strong argument remains that
culpable homicide can never be committed under this section and as such the
maximum available punishment is three years' imprisonment irrespective of the
degree of blameworthiness of the offence committed.[28]
The Motor Vehicles Ordinance 1983 (Section
137 to 172) deals with penalties and fine or both for acts made punishable
therein. Employers
are required by the Employers’ Liability
Page 49
(Compulsory Insurance) Act 1969 to hold
liability cover for their employees and the Road Traffic Act 1988 requires
motorists to be insured for damage to third parties.
At a general level, the function of
a remedy in the law of tort is to relieve the claimant in respect of the loss
or damage he has suffered rather than to punish the defendant. Had there been a
Tort based approach to accident cases, then the owner of the launch or motor
vehicles might have to pay compensation to each of the victims of the accident.
Inadequate safeguards against environmental
torts – Recently the environmental tort is a
separately recognized species of public nuisance. While the countries of the
world are moving towards a rapid evolution of environmental tort,[29]
Bangladesh still remains in the era of piecemeal and nominal protection against
environmental hazards. In most cases the Penal Code and other laws provide a
nominal fine for violation of environmental laws, while a tort based approach
could have help us much.
A major part of
the pollution in Bangladesh occurs due to emission of smoke and sound from
motor vehicles and factories. A variety of approaches have been developed to tackle
the pollution which include punishment of polluters through regulation, taxation,
fines, tort suits, and other deterrents. Section 6 of the Bangladesh
Environment Conservation Act, 1995 and Section 4 of the Environment
Conservation Rules, 1997 provide restriction on vehicles emitting smoke
injurious to environment and health. Except these, there is another law namely
the Brick Burning (Control) Act, 1989 which controls emission of smoke. Section
150 of the Motor Vehicle Ordinance, 1983 prohibits running of smoke emitting motor
vehicle which is made punishable with fine upto two hundred taka only.
5.
Concluding Remarks
In Bangladesh, we need specific
codification of the law of Tort which can insure not only ‘access’ to justice
but insurance to ‘justice’.[30] Given the absence of such a Code, as the Indian
experiences show, the judiciary of Bangladesh could play a significant role through
the variety of means available at its disposal.
In India, the development of the absolute liability rule in the M.C.
Mehta v. Union of India[31]
case and the Supreme Court’s direction on multi-national corporation liability,
recognition of tort by employees of government, evolution of tort of sexual
harassment and grant of interim compensation to a rape victim[32]
have brought significant changes. The Bhopal Gas Leak disaster[33]
has triggered a new path of tort jurisprudence, leading to environment tort,
toxic torts, governmental torts, multi-national company’s liability, congenital
torts, stricter absolute liability, etc. Could we do something like that?
[2] Waghela Rajsanji v. Sheikh
Masulddin (1887) 14 IA 89, 96 quoted in Ratan Lal & Dhiraj Lal’s The
Law of Torts, 23rd Edition, 1998, Wadhwa and Company, Nagpur, p.
2
[4] Munro,
W B., quoted in Vishnoo Bhagwan and Vidya Bhushan, World Constitutions, 7th
Edition, 1998, Sterling Publishers (Pvt) Ltd, p. 17
[5]
Personal interview of Author with Mr Abduallh Al Mamun, Assistant Professor,
Dept of Law, CU (ex Judicial Magistrate) and Mr Golam Morshed, Joint District
Judge of the Feni Judgeship.
[6] The
Penal Code 1860, Section 350
[7] Ratan
Lal & Dhiraj Lal’s The Law of Torts, 23rd Edition, 1998,
Wadhwa and Company, Nagpur, p. 216
[8] Bilkis Akther Hossain v. Government 2 MLR (1997) 113 Para 46
[9] Palsgraf
v. Long Island Railroad Co.,
248 N.Y. 339, 162 N.E. 99 (N.Y. 1928)
[11] Donoghue
v Stevenson [1932] UKHL 100
[12] The Carriers
Act 1865 (Section 3 and 5-10); Bills
of Lading Act
1856,
Carriage of Goods by Sea Act 1925
[14] D.P.
Chaudhary v. Manjulata AIR
1997 Raj 170
[15] Supra
Note 7 pp. 522-523
[16] Ataur Rahman Khan v. Md. Nasim and another 52 DLR 16 - “Article
78(3) confers immunity, inter alia,
in respect of ‘anything said in Parliament’. The word ‘anything’ is of the
widest import and equivalent to ‘everything’ (Para 23).”
[17] Re
S.K. Sundaram 2001 CrLJ 2932 quoted in V. Venkatesan, Truth as a Defence: How effective Is the amendment of
the Contempt of Courts Act?, Indian Journal of Constitutional Law,
Volume 4, pp 164-178 at p. 171
[19] Mesne Profit means profits which have accrued while
there was a dispute over land ownership. If it is determined that the party
using the land did not have legal ownership, the true owner can sue for some or
all of the profits made in the interim by the illegal tenant, which are thus
called "mesne profits." A profit a prendre enables a person to
take part of the soil or produce of land that someone else owns. It is a right
to take from the land, as in the mining of minerals.
[20] Supra Note 6, Sections 378-404 and
410-414
[22] Take
for example Dr. Mohiuddin Farooque
v. Bangladesh 49 DLR (AD) 1 (FAP 20
case), Dr. Mohiuddin Farooque v Bangladesh and others 48 DLR (1996)
(Radio Active Milk Powder case), Dr.
Mohiudin Farooquee v. Bangladesh
55 DLR (2003) 613 (Two Stroke Motor Vehicle Case), Human Rights and Peace for Bangladesh v. Bangladesh, (W/P No 324/20090), 30 BLD (HCD) 125 (Pure Food Case), Salma
Sobhan v. Government of Bangladesh and others, W/P No. 6070/1997;
Judgment delivered on 31 May, 2001 (Unreported) (Fire incidents in Garments
case), etc.
[23]
Based on the author’s personal interview with Mr Alamgir Mohammad Faruqui,
Senior Judicial Magistrate of Feni.
[26]Implementation
of existing laws on Medical Negligence in Bangladesh,
Available Online: http://pharmacyzoneustc.blogspot.com/2011/07/part-vi-implementation-of-existing-laws.html
[27] Supra
Note 6, Section 302
[28] Khan Khalid Adnan, Road
accident: Is it a demon beyond control? The
Daily Star, Law and Our rights, September 9, 2011; http://www.thedailystar.net/law/2011/09/02/index.htm
[29] Even a
British Court took cognizance of a tort claim for the arsenic disaster caused
in Bangladesh by the development agency’s negligence in a case named Sutradhar v NERC. See: Atkins, P. J. and Hassan, M. M. and Dunn, C. E.
(2006) ’Toxic torts : arsenic poisoning in Bangladesh and the legal geographies
of responsibility.’, Transactions of the Institute of British Geographers., 31
(3). pp. 272-285.
[30] Siddiqui
MS, Importance of
Tort Act in restoring justice, The Financial Times, June 09,
2009 Available: http://www.thefinancialexpress-bd.com/2009/06/09/65.html
[31] M.C.
Mehta v. Union of
India (River Ganges Pollution) (1987) 4 SCC 463; M.C.
Mehta v. Union of India (Ganges Water
pollution II) AIR (1988) 1 SCC 471
[32] Delhi Domestic Working Women's Forum v. Union of
India and others Writ petition (CRL) No.362/93
[33] Supra
Note 3
.jpg)
No comments:
Post a Comment