A Term paper on the Application of Tort Law in Bangladesh.

Course name: Law of Tort and Consumer Protection

Course code: LL.B 107

Submitted To Submitted By
Umma Habiba Rakib Ul Islam
Lecturer Reg No: 20203452319
Department of Law and Justice Department of Law and Justice
Jahangirnagar University Jahangirnagar University
Definition of Tort Law
Tort law is a branch of civil law that deals with civil wrongs or injuries, whether intentional or
unintentional, caused by one party to another. The primary purpose of tort law is to provide
compensation to the injured party (plaintiff) for the harm they have suffered due to the actions or
omissions of another individual or entity (defendant).

Torts can cover a variety of wrongdoings, including but not restricted to:

Negligence: This happens when someone doesn't take reasonable precautions, which harms
someone else or their property. For instance, a driver may be held negligent if their carelessness
results in an accident.

Intentional torts are hurtful behaviors that one person intentionally commits against another.
Assault, battery, false imprisonment, defamation, and purposeful cause of emotional distress are
a few examples.

Strict Liability: In some circumstances, a party may be held accountable regardless of fault.
Manufacturers, for instance, may be held strictly accountable in product liability cases if a
customer is harmed by the product.

Since the primary goal of tort law is to compensate the victim rather than penalize the offender,
unlike criminal law, which places a greater emphasis on punishing the wrongdoer, tort law places
a greater emphasis on compensating the victim. The injured person seeks monetary damages to
make up for lost wages, pain and suffering, medical costs, property damage, and other losses
brought on by the tortious act.

Because different nations and states may have their own statutes and legal precedents that govern
civil wrongs and responsibilities, it's crucial to recognize that tort law can vary dramatically from
one jurisdiction to another.

Tort Law In Bangladesh

It makes clear that, in contrast to other legal disciplines, tort law in Bangladesh is still largely
unexplored. There is a tendency among lawyers to completely disregard such a crucial 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 people or public authorities, because it is being treated with
such (disregard). But now, things are looking good thanks to a few attorneys, academics, and
judges who are showing an increasingly keen interest.
Development of 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. 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.

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. A tort is mostly understood as falling under
the rubric of private law where the parties in dispute are private individuals. However, when the
tortfeasor is a public official, a suit for a 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. The distinctions between these two types of torts can be
summarized 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.

• 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.

• 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.

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 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. 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.

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.

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.

Fourthly, as to the quantum of compensation, the court largely relied on the case of Bangladesh
Beverage vs Rawshan Akhter 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.

Secondly, 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.

Thirdly, 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.

Challenges of Tort Law in Bangladesh

The development of tort law has also presented some challenges for insurance assiduity in
Bangladesh. One of the main challenges is the difficulty of proving occasion in tort cases. To
establish liability in a tort case, the complainant must prove that the defendant's conduct caused
their detriment. This can be delicate to do in cases where there are multiple implicit causes of the
detriment. Proving occasions in tort cases can be challenging in Bangladesh. Still, in numerous
cases, there may be multiple implicit causes of the detriment, making it delicate to determine
which cause was the primary factor. This challenge is particularly apparent in cases involving
environmental detriment.
For illustration, in cases where a plant has discharged adulterants into a swash, it may be delicate
to determine whether the plant's conduct was the primary cause of the detriment to the swash or
whether other factors, similar as natural corrosion or other sources of pollution, also contributed
to the detriment. Another challenge is that there may be a lack of scientific data or moxie
available to help establish occasion. For illustration, in cases involving poisonous exposure, it
may be delicate to establish a link between the exposure and the detriment caused, particularly if
there are limited scientific data available on the goods of the particular chemical or substance
involved. To address these challenges, courts in Bangladesh may calculate on expert evidence
from scientists, masterminds, or other professionals to help establish occasion. They may also
consider other factors, similar to the timing of the detriment and the propinquity of the
defendant's conduct to the detriment, in determining whether the defendant's conduct was a
primary cause of harm. But in a developing country like Bangladesh, it's a lengthy process and
time-consuming.

Conclusion

The development of tort law has had a significant impact on insurance assiduity in Bangladesh.
While tort law has helped to give a legal frame for individuals to seek compensation for
detriment caused by the conduct of others, it has also presented challenges for insurers in terms
of assessing and managing threats. The difficulty of establishing occasion in tort cases, as well as
the eventuality of large damage awards, has contributed to increased costs for insurers and has
made it more grueling for them to give affordable content to consumers. Despite these
challenges, still, insurance assiduity in Bangladesh continues to play a critical part in supporting
profitable development and promoting fiscal stability in the country.