Remedy under Tort Law in Bangladesh
by Miss Jesy Chakma
A tort is a civil wrong. The law of tort occurs where there is a breach of general duty fixed by civil law.
Given that information,breach of tort takes place when the defendant has caused injury or loss to the claimant by breaking a relevant obligation imposed by the general law, where the damage committed by the tortfeasor allows the plaintiff to claim money for the damage caused, which is compensated by money.
Also, a tort is an infringement of a private common law right in rem, meaning that this right is available against the whole world.
Unfortunately, in most parts of tort have remained undiscovered in Bangladesh. There is no application of tort law in Bangladesh where the plaintiff can claim for his injury or loss by any wrongful act committed by others.
However, the implementation of tort is gradually increasing in Bangladesh because of shown interest by the judges, lawyers, and academicians.
Recently, the Supreme Court of Bangladesh has decided two critical cases concerning the law of tort. Two topics have been furnished under the tort of law by these two cases:
In general, a man is responsible for his acts, but there are exceptional cases in which the law imposes him ‘Vicarious Liability’ for the action of others. Vicarious liability is a civil wrong that is committed by others in lieu of the defendant. Where a person volunteers himself without any wrongful intention or negligence is classified as ‘Liability Without Fault.’
In the case of liability, the wrongdoer himself is liable for his actions. It is no excuse that he was acting on behalf of or benefit of others. A person may be accountable for wrongdoing committed by others; such liability arises a relationship with the wrongdoer, which is known as ‘Master and Servant’ relationship.
Another point to be remembered for vicariously liable is the master for the tort committed by his servant is liable for the loss or damage to a third party, who is injured by the servant’s wrongdoing. In the act of taking care,the servant is liable to compensate for the loss caused by his master for his failure to take such care.
Negligence is a breach of a legal duty to take care, which results in damage undesired by the defendant to the plaintiff. Three things that need to be proved that there is negligence:
- The defendant was under oath to take care of the plaintiff.
- There was a breach of duty of taking care of the plaintiff.
- The plaintiff suffered actual damage directly caused by the defendant.
Res Ipsa Loquitur means the fact speaks for themselves. It is a principle that the mere occurrence of some types of accidents is sufficient to imply negligence. It is a matter where the proven facts account to prima facie, and evidence of negligence is necessary on the part of the defendant.
To argue Res Ipsa Loquitur, strengthen the presumption that the damage was caused by the defendant’s negligence even though there is no proof of negligence. The plaintiff has to establish such a kind of accident that it is not an ordinary thing that happens if those who had management used proper care.
Two most important cases that have been implied in the tort of law:
Catherine Masud Vs. Md. Kashed Miah and Others
The court observed that the preamble of validating act read with section 4 left no doubt open as to the fact that the act retrospective effect. It was the driver’s fault that caused the accident and whether the owners would be held vicariously liable.
Moreover, the bus driver didn’t have any valid driving license, and the bus itself had no fitness certificate either. The court further concluded that since the owner knew the absence of a fitness certificate of the bus and valid driving license of the driver, so the owners would be held vicariously liable.
CCB Foundation Vs. Government of Bangladesh
To prove the negligence by the Railway Authority, two important doctrines of tort were applied. ‘Res Ispa Loqtur’ and another one is that in the absence of negligence. The Railway Authority conceded that there was negligence, and the court used the doctrine of vicarious liability to hold the Railway Authority liable.
Furthermore, the court investigated whether there was an infringement of fundamental rights. As a result,due to the circumstances, the court held the compensation of BDT 20 Lakh to the Railway Authority.
These two cases are significantly different in two terms, which is a positive effect on the development of tort law. Every day we see many people suffering from injuries and deaths caused by negligence, such development of tort law will strengthen the families financially at the very least. Thereby the implementation of the tort law has become a necessity at present. It is likely that cases under tort Jurisdiction in Bangladesh will increase eventually.