Tort law handles crime and compensatory cases

The term ‘tort' derives from Latin ‘tortum' of which literal meaning is something twisted, wrong, or crooked. Therefore, tort implies a conduct which is twisted or wrong. The term introduced in British law after the Norman Conquest. Its equivalent in English is 'Wrong' and in Roman it is called 'delict'. There is no usable synonym that in Bengali language. So sometimes it’s called ‘Civil wrong', sometimes ‘quasi-contract' or sometimes it is called ‘personal injured'.

In the ever-changing circumstances it has not been possible to provide a complete definition of tort.
According to Salmond- tort is a form of civil wrong which has unliquidated damages (those damages for which there is no fixed amount) in the form of remedy and which is not just exclusively the breach of contract or the breach of trust or breach of merely fair and impartial obligation.

According to Fraser, A tort is an infringement of a right in rent of a private individual giving a right of compensation at the suit of the injured party.
According to Clerk and Lindsell- A tort may be described as wrong independent of contract, for which the appropriate remedy is common law action.
Later Sir Frederick Pollock gave a nice definition which Underhill further developed. According to them, a tort is an act or omission which, independent of contract is unauthorized by law, and results, either, (a) in the infringement of some absolute right to which another is entitled, or (b) in the infringement of some qualified right of another causing damage, or (c) in the infringement of some public right resulting in some substantial and particular damage to some person beyond that which is suffered by the public generally.
The three characteristics that Underhill emphasizes in his definition are –
• Firstly, doing or refraining from doing an act which is not created by the contract.
• Secondly, that act or omission is not justified by law.
• Third, that wrongful act or omission somehow caused the plaintiff special and personal harm as distinct from ordinary personal harm.
However, the characteristics of a tort in the light of various definitions are:
• First, a tort is the doing or omission of an act. When doing something falls within the category of duty, not doing it also implies negative performance.
• Secondly, that act or omission is not authorized by law. The basic principle of tort is not to harm another by word or deed.
• Third, torts are civil wrongs. This feature makes it distinguishable from a punishable offence.
• Fourthly, it differs in character from other civil wrongs such as breach of contract.
• Fifth, torts are not immoral acts.
• Sixth, the tort entitles the injured party to monetary compensation. The amount of this compensation is not specified. Although other remedies may be sought in addition to monetary damages, indeterminate damages are the main characteristic of torts.

Through the British Common Law, tort gained perfection and excellence as a result of the decisions of various cases on the law of torts remediable. The principles of British tort law are applied in our country as well as in Bangladesh-Pakistan-India subcontinent.
Modern day tort law is based on the maxim of ‘alterium non leadere' established in Roman and civil law that required people to avoid hurting others through their words or actions. If someone deviates from this social duty, he is legally responsible.

Individual freedom is recognized in all societies; But while enjoying this right, you have to be aware of the rights of others. Just as one has the right to play music, so does one's neighbor have the right not to be interfered with in his personal comfort.

Just because there is freedom of speech, one cannot say anything that defames others. The main purpose of torts is to protect citizens from potential interests in the complexities of such social activities. Intentional interference with another's rights must be liable, but liability cannot be avoided for unintentional interference, as conduct is more important in torts than intent. For this reason, there is a difference between torts, breach of contract, breach of trust and criminal offences.

The components of a tort are as follows: (1) a wrongful act or omission, (2) Consent, (3) legal damages, (4) direct result, and (5) a valid solution.
However, there are exceptions to the application of torts, including: (1) consent or voluntary non fit injury, (2) unavoidable accident, (3) unavoidable mistake, (4) act of God, (5) acts of state, (6) judicial acts, (7) statutory body, (8) parental rights, (9) self-defense, and (10) necessity. In these cases, tort cannot be applied.
Torts generally seek two types of remedies: (1) judicial remedies and (2) extrajudicial remedies.
Judicial remedies, such as monetary compensation, injunction, restitution of property, and statutory remedies, are available through the courts.
On the other hand, extra-judicial remedies, such as self-help, restitution, re-entry, removal of origin, and seizure of goods subject to recovery of compensation, can be obtained without court intervention.

While anyone can file a suit under tort, there are certain entities that cannot sue, including: (1) foreign enemies, (2) persons guilty or likely to commit serious offenses, (3) insolvent persons, (4) husband and wife, (5) unborn child, (6) unregistered association, and (7) corporations.

Now, let's explore the different types of torts. Specific torts include: (1) unlawful interference with the body (assault, injury, and artificial confinement), (2) Malicious Prosecution (false case), (3) Trespass on land, (4) Product disparagement, (5) defamation, (6) negligence, (7) vicarious liability, (8) Strict liability liability,, (9) absolute liability, (10) liability for dangerous land and houses, (11) liability for dangerous goods, (12) economic tort, (13) conspiracy, (14) interference with contract, (15) illegal business competition, (16) fraud, (17) disclosure of confidential information, and (18) intimidation, among others.

We frequently receive reports regarding various instances of negligent deaths. These fatalities typically arise from incidents such as road accidents, electrocution, medical malpractice, falling into uncovered manholes, accidents involving falling debris from construction sites, fires, and building collapses.

Now, the question arises as to whether it is possible to seek legal remedies under tort law in our country. In this regard, it can be observed that there is a gradual increase in the interest towards tort law, with many individuals pursuing compensation claims. The supportive stance of the higher court towards such cases seeking compensation plays a significant role in fostering this trend. A notable example is the Appellate Division of the Bangladesh Supreme Court, which upheld a verdict awarding a compensation amount of Tk 3.52 million to the family of journalist Mozammel Hossain Montur, who lost his life due to negligence.

In a landmark verdict regarding the death of filmmaker Tarek Masood in a road accident, the High Court has directed the family of Tarek Masood to pay 4,61,75,452 tk. He also directed to pay compensation to the families of the victims and the injured, to the victims of the bus accident. Moreover, the High Court directed the United Hospital to pay compensation to the families of those who died in the fire, the innocent jute worker Jah-alam who was in jail without any crime, the families of those who were killed and injured due to the fall of fly over girders and those who were injured in the bus accident.

This verdict comes in light of several writ petitions, including the wrongful treatment leading to the death of child Ayan, the tragic car accident that claimed the lives of six brothers in Cox's Bazar, the electrocution of Dhaka Residential Model College student Naimul Abrar Rahat, the incident where Abdul Basit Mohammad fell into a drain in Sylhet resulting in his death, and the unfortunate incident where child Jubair got entangled in a power line in Barisal. Consequently, the Hon'ble High Court has issued separate regulations to ensure compensation for the affected individuals and families in the Narayanganj and Chawkbazar fire incidents.

Moreover, it is worth noting that not many individuals in our nation are aware of the tort law, which hinders its application and the opportunity to seek compensation. Nonetheless, individuals can still pursue redress in the Criminal Court through Section 304/337 of the Penal Code for punitive measures, as well as in the Civil Court for the recovery of compensation.

Furthermore, the Constitution, specifically Article 32, recognizes the right to life as a fundamental right. Consequently, in cases where fundamental rights have been violated, individuals can file a writ in the High Court department to seek compensation under tort law. However, a challenge arises due to the absence of a specific law pertaining to compensation in our country, making it difficult to determine the appropriate amount of compensation.
Additionally, it is important to highlight that any citizen, not just the aggrieved party, can initiate a lawsuit on behalf of the people and for the protection of their fundamental rights as per Article 21 of the Constitution. This can be done with genuine intentions and for the betterment of the people of our nation.

Lastly, in our country, torts and tort law remain unfamiliar to many individuals primarily because of the limited utilization and implementation of this legal framework. However, in a progressing nation like ours, the significance of such a crucial law cannot be underestimated, and its necessity is undeniable. Consequently the enactment of tort laws and statutes which serve to prevent negligent fatalities and ensure fair recompense, is long overdue.

Author: Advocate, Supreme Court of Bangladesh