Tort Law in Bangladesh

Applications and Challenges

Sakif Alam

• Publisher: Routledge India
• Year: 2021
• ISBN:
  9781000505153
• Edition: 1
• Topic: Droit
• Subtopic: Droit de la responsabilité délictuelle

This book explores the use of tort laws in Bangladesh, outlining critical studies and cases on key concepts such as nuisance, international torts, negligence, and liability.

Drawing from case studies in the UK, USA, Canada, Australia, and India, the volume comparatively analyses various aspects of tort law including its efficacy, issues of determination and monetary considerations. It scrutinizes academic literature and prominent cases such as Bangladesh Beverage Industries Ltd v Rowshan Akhter and Children Charity Bangladesh Foundation v Government of Bangladesh among others to examine the objective and use of tort law in Bangladesh. It also explores fundamental misconceptions related to the use of torts, protection of public and private rights, formalization of tort cases in courts, types of legal remedies for injuries, and more.

Lucid and topical, this book will be an essential read for scholars of law, tort law, constitutional law, civil and criminal law as well as for legal professionals especially those concerned with Bangladesh.

1 Overview of torts

DOI: 10.4324/9781003241782-1

“Tort” is derived from the Latin word tortus, which means “twisted,” and it was imported into the English language from the French, who still use the word to mean “wrong.”¹ In common law jurisdictions, such as Bangladesh, a tort is a civil wrong, as opposed to a criminal wrong, and permits the claimant to seek monetary compensation from the tortfeasor – who is the person whose action, or inaction, has caused a foreseeable injury.

Unlike criminal law, or other branches of civil law, torts are not governed by legislation.² Rather, torts are common law offences, which are formulated by judges to compensate an innocent victim. Nonetheless, this may engender the question as to why someone would institute proceedings against another under tort and not criminal or contract law. As will become evident, the result that the injured party may derive is different based on how he proceeds with litigation.

1.1 Fundamental misconception

Before proceeding further, I must address a fundamental misconception pervasive in Bangladesh. It is not uncommon to hear that tort law does not apply in this country. However, as I have mentioned in the previous paragraph (and I shall examine this again later in this chapter), torts are common law offences. This means that any aggrieved party in any common law country can institute proceedings under the principles adumbrated by the law of torts to avail its remedies. Furthermore, The Constitution of the People’s Republic of Bangladesh (hereinafter “Constitution of Bangladesh”) contains 153 sections and none of which prohibits one from bringing an action in tort.³ Rather, Section 24(2) of The Trademarks Act, 2009 (hereinafter “Trademarks Act”) permits one to bring an action for passing-off, which is a tortious claim, if the injured party does not have a registered trademark.⁴ To further explain, in order to institute proceedings for trademark infringement, the condicio sine qua non is that a trademark must be registered, and if it is not, then the aggrieved party cannot bring an action against the purported transgressor. However, in the absence of registration, tort law accords protection so that one cannot “pass-off” his goods as that of another’s, as it may create confusion in the marketplace and injure consumers and businesses.⁵

While an action for passing-off has been codified by the Trademarks Act, even if it were not, this would not mean that one would not be able to bring such an action. For example, Explanation 1 of section 299 of The Penal Code, 1860 (hereinafter “Penal Code”) says that if someone causes bodily injury to one who has a disease or “bodily infirmity,” and the infliction of the injury accelerates the latter’s death, it will be held as though the injury caused the death. As in, it would not matter that the perpetrator did not know of the decedent’s infirmity, or “thin skull,” which is actually a common law doctrine⁶ and is applicable in Bangladesh. Therefore, since we are a common law country, and principles of it can be applied, it is illogical to assert that tort law is inapplicable in Bangladesh.

1.2 Contract law and tort law

The primary difference between contract and tort law lies in how protection is provided.⁷ For example, in contract, there is an interest in having promises performed because parties have provided consent. However, the obligation to carry out those promises is owed only to those named in the contract.⁸ This also means that if there is a breach of contract, damages can only be claimed by, again, those that are party to the contract.

On the other hand, tort law casts a broader net of protection that is based not solely on individual will or intention (in other words, contractual relations), but social policy. Moreover, and as we will learn throughout this book, the duty to conduct oneself, or an activity, reasonably is so as not to harm a group of people – not just an individual with whom one has a contract.⁹

This means that relationships can give rise to a claim in contract, if a contract exists, and in tort. However, the outcome, based on how the claimant chooses to proceed, will be different. The primary objective of contract law is to place the claimant in the position he would have been in had the contract been performed. In tort law, the primary objective is to place the claimant in the position he would have been in had he not suffered the injury.¹⁰ This means that tort law provides more monetary compensation than contract law (more on this later).

Suppose you entered into an agreement with someone to have him come over to your bungalow on 10 February and build a porch for a fee of ৳50,000. The next day, you find an advertisement whereby Woodswork Ltd. said it would do the same for ৳40,000, which is a promotional offer. The advertisement further says that the order for construction must be placed by 9 February even if the porch will be constructed a few weeks later, as otherwise, it will cost the usual price of ৳55,000. Though it would have saved you ৳10,000, since you have already entered into a prior agreement, you decide not to breach your original agreement. However, on 10 February, the gentleman informs you that he can no longer build the porch. Furious, not only because he is not constructing the porch, but also because you can no longer avail Woodswork’s promotion, you sue him for breach of contract. In this case, a court would perhaps award you damages of ৳5,000 because that is the difference between (a) Woodswork’s price of construction and (b) the amount you were originally willing to pay so that you can have the porch built and enjoy it.

Now suppose that the gentleman comes over on 10 February and constructs the porch, but does so negligently. Three days later, as you are drinking coffee on the porch, it crumbles and you suffer a broken leg and hand as a result thereof. If you bring proceedings under tort, the court will award damages for the injury and its associated costs. As in, because of the injury, if your hospital fees are ৳50,000, the court will order the defendant to pay the full amount.

Notice that there is a marked difference between damages in contract and tort law. In the first scenario, you would perhaps only receive ৳5,000, as it would meet the objective of contract law, which, again, is to place the party in the position he would have been in had the contract been performed. However, the amount of damages is nominal. In the second scenario, you would receive a significantly larger sum, because in order to place the party he would have been in had he not been injured, the negligent actor must compensate the injured party in full. In this manner, tort law would be more beneficial than filing a case for breach of contract.

1.3 Criminal law and tort law

When a pedestrian is struck and killed by a motor vehicle, the state can institute proceedings criminally under section 304B of the Penal Code, or his family members can do so civilly under tort law.¹¹ However, similar to contract law, the resulting remedy would be entirely different.¹² In fact, there are three differences between criminal law and tort law. First, prosecution of criminal law is the responsibility of the state; that is, if someone is accused of theft, it is the state that brings the action and not the individual whose property was stolen. The reason the government is involved is due to their desire for maintaining peace and public order. However, tort litigation is brought at the personal initiative and expense of the aggrieved party.¹³

Second, the standard of proof in criminal law is significantly higher than in tort. In criminal law, one must adduce evidence of the guilt of the accused “beyond a reasonable doubt,” whereas, in tort, since it is a civil wrong, the standard of proof is “balance of probabilities.” This means that a judge (or jury) must be convinced of the defendant’s guilt on a preponderance of evidence, which is considerably lower than the standard in criminal litigation. As in, it is considerably more difficult to prove the accused’s guilt in criminal law.

Third, in criminal law, the focus is on punishing the offender in order to prevent him from committing the same, or similar, offence again. However, in tort law, the focus is on the person who has suffered the injury and meeting his desire to receive monetary compensation; that is, the function of tort law is to (1) monetarily compensate the aggrieved party by correcting the injustice, (2) punish the offender by holding him accountable, (3) deter the offender and others from committing similar offences, (4) appease the plaintiff’s anger, (5) provide a forum for vengeance, and (6) educate the public.

Criminal law’s remedy is imprisoning the offender; tort law’s remedy, however, is to award monetary compensation. The court punishes the defendant by ordering him to pay damages to the aggrieved party, which informs the public that similar sentences may be imposed for like offences, begetting the probability that others will not engage in such misconduct. For example, if someone cuts your hair sans permission, he would be guilty of assault, which, pursuant to section 352 of the Penal Code, would authorize a court to imprison the accused for up to three months. However, incarceration of the accused for intentionally cutting your hair without your permission may not be to your complete satisfaction; that is, you may have been growing your hair for the past three years because you view long hair as an important element of your beauty and the non-consensual interference will now militate against it. Therefore, you may want something more, or other, than the defendant’s imprisonment.

This is where tort law can help in dispensing with an alternative remedy. Through tort, the victim – in our case, the lady with the long hair – can seek monetary compensation for the wrong suffered. While monetary compensation may not thoroughly satisfy someone’s distress, it is a substitute to the remedy familiar to criminal law and the victim has the option of choosing whether to proceed criminally or civilly.

Additionally, since criminal law is governed by statute – Penal Code – it may occasionally be insufficient in according protection to another. While one is protected against, inter alia, trespass, assault, and theft, what protection is accorded to a person whose neighbour installs a CCTV camera outside his apartment and it periodically captures footage of activity happening inside the former’s apartment when he opens his door? A...