Adaptability of The Law of Tort in Bangladesh: An Interpretative Approach
Adaptability of The Law of Tort in Bangladesh: An Interpretative Approach
Adaptability of The Law of Tort in Bangladesh: An Interpretative Approach
Banglavision
Vol. 14 • No. 1 • June 2014
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Assistant Professor, Department of Law at Bangladesh Islami University (BIU), Dhaka-1203.
E-mail: tariqiqbal.shakil@gmail.com
Adaptability of the Law of Tort in Bangladesh: An Interpretative Approach 163
Definition of Tort
Tort is a civil wrong for which the remedy is an action for unliquidated damages and which
is not exclusively the breach of a contract, or the breach of a trust, or the breach of other
merely equitable obligation"- Salmond. The first reported case where the court used the word
"tort" is an old (1597) English case, Boulton v. Hardy (1597, cro. Elz. 547). The term tort is
the French equivalent of the English word ‘wrong’ and of the Roman law term ‘delict’. The
word tort is derived from the Latin word tortum which means twisted or crooked or wrong
and is in contrast to the word rectum which means straight. Everyone is expected to behave
in a straightforward manner and when one deviates from this straight path into crooked ways
he has committed a tort. Hence tort is a conduct which is twisted or crooked and not straight.
As a technical term of English law, tort has acquired a special meaning as a species of civil
injury or wrong. It was introduced into the English law by the Norman jurists. Tort now
means a breach of some duty independent of contract giving rise to a civil cause of action
and for which compensation is recoverable. In spite of various attempts an entirely
satisfactory definition of tort still awaits its master. In general terms, a tort may be defined as
a civil wrong independent of contract for which the appropriate remedy is an action for
unliquidated damages. Some other definitions for tort are given below:
Winfield and Jolowicz- "Tortuous liability arises from the breach of a duty primarily fixed by
law; this duty is towards persons generally and its breach is repressible by an action for
unliquidated damages."
Salmond and Hueston- "A tort is a civil wrong for which the remedy is a common action for
unliquidated damages, and which is not exclusively the breach of a contract or the breach of
a trust or other mere equitable obligation."
Sir Frederick Pollock- "Every tort is an act or omission (not being merely the breach of a
duty arising out of a personal relation, or undertaken by contract) which is related in one of
the following ways to harm (including reference with an absolute right, whether there be
measurable actual damage or not), suffered by a determinate person:-
a) It may be an act which, without lawful justification or excuse, is intended by the agent to
cause harm, and does cause the harm complained of.
b) It may be an act in itself contrary to law, or an omission of specific legal duty, which
causes harm not intended by the person so acting or omitting.
c) It may be an act of violation the absolute right (especially rights of possession or
property), and treated as wrongful without regard to the actor’s intention or knowledge.
This, as we have seen is an artificial extension of the general conceptions which are
common to English and Roman law.
d) It may be an act or omission causing harm which the person so acting or omitting to act did
not intend to cause, but might and should with due diligence have foreseen and prevented.
e) It may, in special cases, consist merely in not avoiding or preventing harm which the
party was bound absolutely or within limits, to avoid or prevent."
the child is one’s own. A person who voluntarily commences rescue cannot leave it half the
way. A person may be under duty to control natural happenings to his own land so as to
prevent them from encroaching others’ land.
Voluntary and Involuntary Acts
A voluntary act has to be distinguished from an involuntary act because the former may
involve liability and the latter may not. A self willed act like an encroachment for business, is
voluntary, but an encroachment for survival may be involuntary. The wrongfulness of the act
and the liability for it depends upon legal appreciation of the surrounding circumstances.
Malice
Malice is not essential to the maintenance of an action for tort. It is of two kinds, ‘express
malice’ (or malice in fact or actual malice) and ‘malice in law’ (or implied malice). The first
is called malice in common acceptance and means ill will against a person; the second means
a wrongful act done intentionally without just cause or excuse. Where a man has a right to do
an act, it is not possible to make his exercise of such right actionable by alleging or proving
that his motive in the exercise was spite or malice in the popular sense. An act, not otherwise
unlawful, cannot generally be made actionable by an averment that it was done with evil
motive. A malicious motive per se does not amount to injuria or legal wrong.
Development of the Concept of the Law of Tort
Historical Background
The subject of torts originates in the idea of hurt or damage done by force. The early history
of the law of torts, after its separation from criminal law, is embraced in the history of the
action of trespass. Trespasses early were divided into several distinct actions, or perhaps it
would be more accurate to say that trespass was the combination of these several actions. In
all of these branches of the action, however, we see present the element of force or violence.
In trespass quare clausium fregit, there is the forcible entry upon or damage to the land; in
trespass de bonis asportatis, there is the forcible taking and carrying away of the goods of
another; while in trespass to the person the violence is directed against the person of the
injured party. For indirect damages or for damages unaccompanied with violence to a
person's body, land or personal property, or for such damages as those to his reputation there
could be no relief under the action of trespass, and there was no relief under any form of
action until near the close of the thirteenth century. Right of action for injuries which cannot
be brought within the scope of trespass owe their origin to the famous Statute of Westminster
II 36 passed in 1285. Under the authority of this statute there was created the new action of
Case, or of Trespass on the Case which with trespass covers the whole field of torts. The
most common view of the history of (common) tort law is that it grew from those duties
imposed upon actions that caused physical harm, regardless of fault, and expanded from
there to determine more refined moral standards of general liability, but not everyone would
agree. Some early quotes are "the thought of man shall not be tried for the devil himself
knoweth not the thought of man" (Chief Justice Brian, 1468), and "in all civil acts, the law
doth not so much regard the intent of the actor, as the loss and damage of the party
suffering". Early post-Norman England required writs, which cost money, in order to bring a
defendant to court. There were a limited number of very specific writs. Local aristocracy
would limit the writs that could be issued to bring people to the King's court, largely because
they wanted to increase the power of the local courts. Two writs of specific historic interest
are the writ of trespass, and the writ of action on the case.
Adaptability of the Law of Tort in Bangladesh: An Interpretative Approach 165
innocent of any intention to bring about the result in question, has failed nevertheless to act
up to the standard set by law, which is usually that of a reasonable man. Recklessness is
serious failure to act reasonably. When a statute prescribes a certain standard of behavior
with a view to avoiding injury to persons, it has been said that the failure to come up to the
standard is statutorily equivalent to negligence, without proof of carelessness. Now as a
result of the development of law, (in England mainly in the nineteenth century), negligence
has become an independent, specific tort in itself. Although it is clearly a mental element,
still judges in deciding whether a man is guilty of negligent conduct or not apply an external
standard and do not take into consideration his real mental attitude at the moment of the act.
Thus to determine whether a particular driver has been negligent in driving his car alone the
public road, or whether a doctor has been negligent in performing a particular operation, they
apply an external standard of a reasonable man placed in similar circumstances. If the judge
is of opinion that a reasonable man in similar circumstances as the defendant would not have
acted in that way and caused damage to the plaintiff, then the defendant is liable. Thus a
purely standard was applied in such cases and wrongdoers were not permitted to aver that in
fact and in truth they were not in negligent or careless.
The reason for the application of this external standard by the judges in England was due to
the increase of the railway accidents and other injuries from industrial machinery in that
country during the nineteenth century. The judges found that no justice could be done to the
injured individuals or their relatives if the wrongdoers were permitted to set up their
individual state of mind as a defense. Then it will be easy for even willful wrongdoers to say
that they never intended to do any harm to any person, much less to the particular plaintiff,
and it will really be very difficult for the latter to prove the mental state of such defendant.
The conduct of reasonable man as envisaged in English common law could be seen from a
decision of Vaughan v. Menlove, the plaintiff had some interest in certain cottages on land
adjoining that on which the defendant had erected a haystack. The plaintiff's cottages were
damaged by a fire which had spread from the haystack which was insured. When the
condition of the stack and the probable and almost inevitable consequence of permitting it to
remain in its then state were pointed out to him, he abstained from the exercise of the
precautionary measures that common prudence and foresight would naturally suggest and
very coolly observed that he would chance it. It was manifested that he adverted to his
interest in the insurance office. The defendant was held liable. Tindal, C.J. while rejecting the
argument of the defendant that he had would bona fide to the best of his judgment and that
should be accepted, said thus: "instead, therefore, of saying that the liability for negligence
should be coextensive with the judgment of each individual, which would be as variable as
the length of the foot of each individual, we ought rather to adhere to the rule which requires
in all cases a regard to caution such as a man of ordinary prudence would observe.
Defamation
The right of each man during his lifetime to the unimpaired possession of his reputation and
good name is recognized by law reputation depends upon opinion and opinion in the main on
the communication of thought and information from one individual to another. The law of
defamation based upon the fundamental principal that the reputation of the member of the
society, the esteem in which he is held by it, the credit and trust it reposes on his intelligence,
honor and integrity, all these constitute a valuable asset for him and it deserve protection at
the hands of law. A defamatory statement is a statement calculated to expose a person to
Adaptability of the Law of Tort in Bangladesh: An Interpretative Approach 167
hatred, contempt or, ridicule, or to injure him in his trade, business profession, calling or
office, or to cause him to be shunned or avoided in society. Defamation is the publication of
statement which makes lower a person in the estimation of right thinking members of society
generally or which tends to make them avoid that person (Winfield) defamation is a false
accusation of an offense or a malicious misrepresentation of someone's words or actions
aspersion: an abusive attack on a person's character or good name. Any intentional false
communication, either written or spoken, that harms a person's reputation; decreases the
respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or
disagreeable opinions or feelings against a person. Defamation may be a criminal or civil
charge. It encompasses both written statements, known as libel, and spoken statements,
called slander.
Nuisance
Under the common law, persons in possession of real property (land owners, lease holders
etc) are entitled to the quiet enjoyment of their lands. However this doesn't include tenants or
visitors etc as they aren't considered to have an interest in the land. If a neighbor interferes
with that quiet enjoyment, either by creating smells, sounds, pollution or any other hazard
that extends past the boundaries of the property, the affected party may make a claim in
nuisance. Legally, the term nuisance is traditionally used in three ways:
1. To describe an activity or condition that is harmful or annoying to others (e.g., indecent
conduct, a rubbish heap or a smoking chimney)
2. To describe the harm caused by the before-mentioned activity or condition (e.g., loud
noises or objectionable odors)
3. To describe a legal liability that arises from the combination of the two. However, the
“interference” was not the result of a neighbor stealing land or trespassing on the land.
Instead, it arose from activities taking place on another person’s land that affected the
enjoyment of that land.
The law of nuisance was created to stop such bothersome activities or conduct when they
unreasonably interfered either with the rights of other private landowners (i.e., private
nuisance) or with the rights of the general public (i.e., public nuisance). A public nuisance is
an unreasonable interference with the public's right to property. It includes conduct that
interferes with public health, safety, peace or convenience. The unreasonableness may be
evidenced by statute, or by the nature of the act, including how long, and how bad, the effects
of the activity may be. A private nuisance is simply a violation of one's use of quiet
enjoyment of land. It doesn't include trespass. To be a nuisance, the level of interference must
rise above the merely aesthetic. For example: if your neighbor paints their house purple, it
may offend you; however, it doesn't rise to the level of nuisance. In most cases, normal uses
of a property that can constitute quiet enjoyment cannot be restrained in nuisance either. For
example, the sound of a crying baby may be annoying, but it is an expected part of quiet
enjoyment of property and does not constitute a nuisance. Any affected property owner has
standing to sue for a private nuisance. If a nuisance is widespread enough, but yet has a
public purpose, it is often treated at law as a public nuisance. Owners of interests in real
property (whether owners, lessors, or holders of an easement or other interest) have standing
only to bring private nuisance suits.
168 Banglavision Research Journal Vol. 14, No. 1, 2014
Trespass to Land
It is a form of infringement on property rights. The tort of trespass to land consist in the act
of (1) entering the land in the possession of the plaintiff, or (2) remaining upon such land, or
(3) placing or projecting any object upon it- in each cases without lawful justification.
Trespass to land is a common law tort that is committed when an individual or the object of
an individual intentionally (or in Australia negligently) enters the land of another without a
lawful excuse. Trespass to land is actionable per se. Thus, the party whose land is entered
upon may sue even if no actual harm is done. In some jurisdictions, this rule may also apply
to entry upon public land having restricted access. A court may order payment of damages or
an injunction to remedy the tort. By law, Trespass for mesne profits is a suit against someone
who has been ejected from property that did not belong to them. The suit is for recovery of
damages the trespasser caused to the property and for any profits he or she may have made
while in possession of that property. For a trespass to be actionable, the tort doer must
voluntarily go to a specific location, but need not be aware that he has entered the property of
a particular person. If A forces B against his or her will onto C's land, C will not have action
in trespass against B, because B's actions were involuntary. C may instead claim against A.
Furthermore, if B is deceived by A as to the ownership or boundaries of C's land, A may be
jointly liable with B for B's trespass. In most jurisdictions, if a person were to accidentally
enter onto private property, there would be no trespass, because the person did not intend any
violation. However, in Australia, negligence may substitute the requirement for intent. Thus
in that country, if a person trips and rolls upon the land of another, for want of due care, he or
she would likely be found to have committed trespass. Modern law allows landowner to
possess, and maintain an action in trespass in relation to, the airspace above the land or the
subsurface beneath to the extent that is reasonably necessary for the enjoyment of the land or
the extent to which control can be exercised.
It is also arguable that the threat of liability based on the notion of fault is likely to result in
the adoption of over-defensive practices which might prove detrimental to the interests of the
client or patient. A further consideration is that if tort rules do operate in a deterrent fashion,
then steps may be taken by potential defendants to guard against being sued which may be
out of proportion to what is considered reasonably necessary. The possibility that such
disproportionate steps may be taken is often put forward as a reason for not imposing a duty
of care. Thus if there is a danger that doctors may engage in ‘defensive medicine’ this may be
a reason for declining to hold that a duty of care exists in particular circumstances. But the
concept of defensive practices is not confined to cases of medical malpractice and may
extend into other areas such as the exercise of statutory powers by a public authority charged
with a responsibility for protecting others.
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