Published in Dhaka Tribune on 12 September 2013
The cost of negligence
Nabil Ahsan
Our legal system in its present form is not yet ready to accommodate widespread tort claims
Traffic accidents taking multiple lives or alleged negligent doctors killing patients are two very common phenomena in Bangladesh. Recently, there have been large scale industrial accidents killing and permanently crippling many workers. We often witness huge uproar in the media after such events, people demanding justice and putting the accused persons behind bars. Eventually the hype loses its momentum and life goes on as usual. We tend to forget what happened to the families of the victims who died or the sole bread earner of a family who lost his leg in an accident. Who is to take care of their families and to look after the education of their children?
Most developed legal systems have a concept of compensation for victims and their families for accidental death, bodily injury or property loss arising out of someone else’s negligence. It is commonly referred to as tort claims. If you have watched Boston Legal, you must have noticed lawyers constantly negotiating a deal out of the courtroom. Most of these negotiations are relating to tort claims for negligence. Essentially, the idea is to put a price tag on a person’s body and life so as to compensate him for his loss, taking into consideration his medical expenses, pain and suffering, and future earning potential.
In England the concept of tort of negligence developed in the early part of the 20th century. Following the landmark case of Donoghue v Stevenson, the “neighbourhood principle” gained widespread popularity in the English courts. In simple terms it means we all owe a duty of care to people who may be affected by our conduct or behaviour. So, a manufacturer owes a duty of care to its workers as well as to the end users of the products it prepares. Similarly, a driver owes a duty of care to his passengers and to other persons on the street. If he is negligent about his conduct, giving rise to bodily injury or financial loss to any other person to whom such duty is owed, by law he is liable to compensate the victim for the loss that victim suffered.
A few instances where a tortuous claim for negligence may be appropriate are given in the following paragraphs:
Negligence and road accident
If your family members died or suffered serious injury as a result of road accident, don’t just file a criminal suit. Yes, the driver may go to jail, but you can’t get a penny as compensation from the driver. In all likelihood he is a poor fellow with no substantial assets. Instead you are better of suing his employer, whether an individual person or a company. You can file a civil suit claiming for damages, to be assessed on the basis of the victim’s earning potential. This civil suit has no connection with the criminal charge against the driver, and both the cases can run simultaneously.
In a recent case, Bangladesh Beverage v Rowshan Akhter concerning death of a journalist in 1989 following an accident caused by the negligent driver of a reputed company, the High Court Division of the Supreme Court of Bangladesh, awarded the family members of the deceased approximately Tk20m as compensation for the victim’s untimely demise. The company was held vicariously liable for the negligence of the driver employed by it.
Medical negligence
Often we hear about death due to medical negligence. An angry mob would barge in and break hospital property. Media will be there and so will the police. As a routine matter, the concerned doctor would deny any liability while the family members would insist that the doctor was negligent. At the end of the day what is really achieved? The better solution is to take all the evidence and reports and consult an expert to determine the real cause of death. If there is prima facie evidence of medical negligence, you may consider filing a lawsuit against the doctor and the hospital management.
Industrial accidents
The recent Rana Plaza collapse demonstrates how negligence and poor judgment can lead to colossal loss of lives. Somebody ought to pay for this. While media campaign for punishment of Rana, the owner of the building, and others is definitely positive, from entirely economic perspective, victims of industrial accidents should consider making tort claims against their employers for failing to take proper safety measures to ensure protection of factory workers. Under the Bangladeshi law, the Fatal Accidents Act, 1855 provides the legal instrument for obtaining damages as a result of negligent or wrongful act resulting in death.
It will be unrealistic to suggest that getting compensation will be an easy matter. In our legal tradition, unfortunately, the exercise of tortuous claims is not popular. There are many institutional hurdles as well. Most lawyers do not know how to handle tort claims. Moreover, courts are reluctant to pass an order attaching huge sum of compensation. Our legal system in its present form is not yet ready to accommodate widespread tort claims. However, everything has to start somewhere. Knowing your legal rights is the first step!
