Introducing tort in bangladesh

THESIS PAPER
Chapter 1
INTRODUCTION

Tort is the area of law where in response to a private or civil wrong or injury the courts provide the remedy of allowing a lawsuit for (usually monetary) damages. Thus, the goal is to restore the victim to his or her former condition.
Tort law is said to be a development of the old maxim ubi jus ibi remedium (Every right needs a remedy). The term tort comes from the Latin"tortus", meaning "crooked" or "twisted”. Derived from French for "wrong," a civil wrong or wrongful act, whether intentional or accidental, from which injury occurs to another. Torts include all negligence cases as well as intentional wrongs which result in harm. Therefore tort law is one of the major areas of law (along with contract, real property and criminal law) and results in more civil litigation than any other category. Some intentional torts may also be crimes, such as assault, battery, wrongful death, fraud, conversion (a euphemism for theft) and trespass on property and form the basis for a lawsuit for damages by the injured party. Defamation, including intentionally telling harmful untruths about another-either by print or broadcast (libel) or orally (slander)-is a tort and used to be a crime as well.

1.1    Definition of Tort
“A 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 redressible 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 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.

1.2 Some General Conditions in Torts
1.2.1 Act And Omission
To constitute a tort there must be a wrongful act, whether of omission or commission, but not such acts as are beyond human control and as are entertained only in thoughts. An omission is generally not actionable but it is so exceptionally. Where there is a duty to act an omission may create liability. A failure to rescue a drowning child is not actionable, but it is so where 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.

1.2.2 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 fro 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.

1.2.3  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 what 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.












Chapter 2
DEVELOPMENT OF THE CONCEPT OF THE LAW OF TORTS

2.1 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.

2.2 The origin of law of Tort
Tort law arises largely out of common law.
Different states and different municipalities have their own tort standards, although there are some unifying concepts.
Torts are made up of elements. The general four elements for any cause of action in tort are:
(a)    Duty (frequently encountered viz. standard of care analyses)
(b)    Breach of duty
(c)    Causation
(d)    Damages

2.3 The Possible Functions of the Law of Tort
2.3.1 Corrective Justice
a)    Tort law can restore the “moral” (occasionally) and “financial” balance offset by the wrong.
b)    The above functions best on an individualist level; when several parties are involved, the rationale begins to get diluted.

2.3.2 Optimal Deterrence
a)    We want to deter excessively risky activity.
b)    Avoid losses that are worth avoiding.
c)    This justifies the imposition of a negligence standard in most cases.
d)    Naturally, “worth avoiding” is very subjective.

2.3.3 Loss Distribution
a)    Promote the broad distribution of potential losses
b)    “Having a large number of people bear a small loss” is better than the converse.
c)    Calabresi: Tort law should aspire to assign liability to the cheapest cost avoider.
d)    Problem: A lawsuit is an inefficient way of achieving an equitable distribution of loss.

2.3.4 Compensation
a)    Promote the compensation of those who have suffered injury.
b)    The above has many problems, especially as tort law becomes more sophisticated and broad-spectrum.
c)    Consequently, it is easier to say that compensation under certain circumstances promotes the other goals of tort law.

2.3.5 Redress of Social Grievances
a)    Tort law permits the triumph of “small” actors against large.
b)    Populism and anti-institutionalism.
c)    As with compensation, functions best in tandem with other tort rationales.




Chapter 3
DIFFERENCE WITH OTHER SPECTRUM OF LEGAL JURISPRUDENCE

3.1 Law of Tort and Crime
Historically tort had its roots in criminal procedure. Even today there is a punitive element in some aspects of the rules on damages. However tort is a species if civil injury or wrong. The distinction between civil and criminal wrongs depends on the nature of the remedy provided by law. A civil wrong is one which gives rise to civil proceedings. A civil proceeding concerns with the enforcement of some right claimed by the plaintiff as against the defendant whereas criminal proceedings have for their object the punishment of the defendant for some act of which he is accused. Sometimes the same wrong is capable of being made the subject of proceedings of both kinds. For example assault, libel, theft, malicious injury to property etc. in such cases the wrong doer may be punished criminally and also compelled in a civil action to make compensation or restitution.
Not every civil wrong is a tort. A civil wrong may be labeled as a tort only where the appropriate remedy for it is an action for unliquidated damages. Thus for example, public nuisance is not a tort merely because the civil remedy of injunction may be available at the suit of the attorney general, but only in those exceptional cases in which a private person may recover damages for loss sustained by him in consequence thereof. However it has to be born in mind that a person is liable in tort irrespective of whether or not an action for damages has been given against him. The party is liable from the moment he commits the tort. Although an action fro damages is an essential mark of tort and its characteristic remedy, there may be and often other remedies also.

3.1.1  Difference in Doctrine and Structure
“In the beginning,” of course, crime and tort were not sharply distinguished. At early common law, a victim could pursue justice for the same wrongful act either through a forerunner of criminal law or through a forerunner of tort law. But over time, criminal law and tort law have evolved to encompass a number of distinctive and contrasting features. The following nine features are especially salient.
(1) The state prosecutes violations of criminal law. A victim's consent is neither necessary nor sufficient for a prosecution to be brought. In tort law, by contrast, the victim decides whether to bring a tort claim and is free to choose not to do so. This structural difference is sometimes given a more substantive gloss: criminal law prohibits "public" wrongs and tort law "private" wrongs. But what exactly does that mean? Part of what it means is this second point of distinction:
(2) Tort law typically requires harm as a prerequisite to a remedy. Criminal law does not. Specifically, criminal law punishes not only:
(a) Acts that is harmful to others, but also:
(b) Acts that are harmful only or mainly to the actor being Punished;
(c) Dangerous acts that have not yet caused harm; and
(d) Acts that the community considers immoral, even if the acts are not "harmful" in the narrower sense of the term. By contrast, tort law mainly provides a remedy for harmful acts, not for acts that create risks of future harm, and not for acts that are considered immoral but not harmful.
(3) Criminal law often imposes much more severe sanctions than tort law, of course: loss of liberty or even of life. So the procedural protections in criminal law obviously are much more extensive and (in theory at least) a much greater barrier to liability. For example, the criminal defendant, unlike the tort defendant, must be proven guilty beyond a reasonable doubt, the exclusionary rule sometimes applies, and the double-jeopardy rule precludes the same jurisdiction from pursuing multiple convictions for the same conduct.
(4) Criminal law, in theory at least, contains a proportionality principle, requiring that the punishment "fit" the crime. Punishment should be proportional to the culpability of the actor and the seriousness of the harm or wrong he has committed or threatened. But tort law does not purport to provide remedies proportional to the injurer's wrong: normally, compensation is the remedy, whatever the nature of the tort or wrong. To be sure, the compensatory remedy is scaled to the severity of the harm caused, and, in that sense, is proportional. But the tort remedy usually does not vary with the culpability of the injurer. Suppose, in three separate incidents, injurers A, B, and C cause precisely the same harm to their respective automobile accident victims; but A is strictly liable for a manufacturing flaw in the automobile, a flaw that could not have been prevented by due care; while B is negligent for momentarily taking his eyes off the road; and C is negligent for dangerously passing another car on a busy highway. A, B, and C will pay precisely the same damages. Of course, punitive damages, in the small number of cases where they are awarded, are an important exception: they do achieve some degree of proportionality between the level of the injurer's culpability and the damages he must pay. But even punitive damages are not nearly as sensitive to differences in degrees of culpability as criminal law sanctions are. Although the degree of reprehensibility of the injurer's conduct is sometimes reflected in the size of a punitive damage award, many other factors also affect the size of that award, including whether the injurer's course of conduct caused widespread harm to persons other than the plaintiff. Related to this point about proportionality is the following distinction:
(5) Criminal law contains a much broader spectrum of fault or culpability than does tort law. The spectrum is wider along two dimensions: the state of mind, or mens rea, element and the conduct, or social harm, element. Thus, the requisite culpable state of mind in criminal law ranges from strict liability to negligence to recklessness to knowledge to purpose, with punishment varying according to that mens rea. (The multiple degrees and categories of homicide are the best example of this range.) And the conduct or social harm element also ranges enormously. Every American jurisdiction contains an extraordinary number and range of criminal offenses. By contrast, most of tort law is governed by a negligence standard. There are relatively few categories of intentional torts and even fewer categories of recklessness and strict liability. To be sure, a number of distinct torts address distinct forms of conduct and social harm other than the physical harm that negligence law protects. For example, the protection of emotional harms ranges from emotional distress negligently created by an actor whose conduct threatened physical harm, to invasions of privacy, to defamation. Nevertheless, the number of discrete tort causes of action pales in comparison to the number of distinct crimes.
(6) Criminal law requires a greater minimal level of fault before liability will be imposed than does tort law. This is a very crude generalization, with many exceptions. Still, the minimum fault requirement tends, in criminal law, to be something like gross negligence or even recklessness, while in tort law, ordinary negligence usually suffices. Criminal law does contain some doctrines of strict liability, especially with respect to the grade of the offense (e.g., reasonable mistake is no defense if it only goes to the amount of illegal drugs that the actor possesses or to the value of the goods that he has stolen) and also with respect to mistake or ignorance of law, where even reasonable mistake or reasonable ignorance is normally no defense. But strict liability is less widespread in criminal law than in tort law. Tort recognizes such strict liability doctrines as liability for abnormally dangerous activities, for manufacturing defects in products, and for wild animals. Tort law also pervasively imposes strict liability in the form of vicarious liability, especially the liability of employers for the tortious acts of their employees. More fundamentally, criminal law targets conduct that is impermissible. Or, as economists might say, the optimal incidence of criminal conduct is zero. But tort law sometimes creates liability for perfectly permissible conduct, conduct that we would not want to preclude. As Robert Cooter put it, criminal law exclusively imposes sanctions, while tort law sometimes prices an activity.
(7) Criminal law pays much less attention to the victim's conduct than does tort law. First, in criminal law, victim fault hardly ever matters. Contributory negligence is not a criminal law defense, but it is routinely taken into account in tort law. Second, the consent of the victim to the behavior of the wrongdoer, or to the risks imposed by his behavior, is much more likely to be a full defense in tort law than in criminal law. Criminal law includes many so-called victimless crimes, that is, crimes in which both of the immediate parties to the transaction consent, such as prostitution, gambling, and drug distribution. And consent is generally no defense to causing serious bodily injury, as opposed to minor bodily injury, in criminal law; but in tort law, it will more often serve as a full defense.
(8) Criminal law is statutory. The doctrine of common-law crimes is largely defunct. By contrast, tort law remains mainly a set of common-law, judge-made doctrines (although the statutory overlay is increasing). This fundamental difference is related to many others. For example, criminal law tends to produce more detailed specifications of wrongful behavior than tort law, which, in important domains (especially negligence), creates liability standards that are maddeningly vague. At the same time, criminal law is in some ways more difficult to change in response to changing conditions. Tort law provides a more flexible framework for challenging new forms of wrongdoing, such as clergy malpractice or invasions of privacy through new technology.
(9) Excuses to liability are recognized in criminal law much more readily than in tort law. Thus, the insane are generally liable for their torts, but are not criminally responsible (though again, this theoretical difference is belied by actual legal practice, since it is extraordinarily difficult for mentally disordered criminal defendants to succeed with an insanity defense). Moreover, criminal law and tort law differ in their treatment of children: even relatively young children are often liable for torts, but they are not criminally responsible.

3.2 Law of Tort and Contract
The definition given by P.H. Winfield clearly brings about the distinction between tort and contract. It says, tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages. A contract is that species of agreement whereby a legal obligation is constituted and defined between the parties to it. It is a legal relationship, the nature, content and consequence of which are determined and defined by the agreement between the parties. According to Salmond, a contract arises out of the exercise of the autonomous legislative authority entrusted by the law to private persons to declare and define the nature of mutual rights and obligations.
At the present day, tort and contract are distinguished from one another in that, the duties in the former are primarily fixed by law while in the latter they are fixed by the parties themselves. Agreement is the basis for all contractual obligations. “People cannot create tortious liability by agreement. Thus I am under a duty not to assault you, not to slander you, not to trespass upon your land because the law says that I am under such duty and not because I have agreed with you to undertake such duty.
1.    Some of the distinctions between tort and contract are given below:
 A tort is inflicted against or without consent; a contract is founded upon consent.
2.    In tort no privity is needed, but it is necessarily implied in a contract.
3.    A tort is a violation in rem (right vested in some person and available against the world at large.); a breach of contract is an infringement of a right in personam (right available against some determinate person or body).
4.    Motive is often taken into consideration in tort, but it is immaterial in a breach of contract.
5.    In tort the measure of damages is not strictly limited nor is it capable of being indicated with precision; in a breach of contract the measure of damages is generally more or less nearly determined by the stipulations of the parties.
In certain cases the same incident may give rise to liability both in contract and in tort. For example, when a passenger whilst traveling with a ticket is injured owing to the negligence of the railway company, the company is liable for a wrong which is both a tort and a breach of a contract.
The contractual duty may be owed to one person and the duty independent of that contract to another. The surgeon who is called by a father to operate his daughter owes a contractual duty to the father to take care. If he fails in that duty he is also liable for a tort against the daughter. In Austin v. G.W. Railway,  a woman and her child were traveling in the defendant’s train and the child was injured by defendant’s negligence. The child was held entitled to recover damages, for it had been accepted as passenger.
There is a well established doctrine of Privity of Contract under which no one except the parties to it can sue for a breach of it. Formerly it was thought that this principle of law of contract also prevented any action being brought under tortuous liability. But this fallacy was exploded by the House of Lords in the celebrated case of Donoghue v. Stevenson  . In that case a manufacturer of ginger beer had sold to a retailer, ginger beer in a bottle of dark glass. The bottle, unknown to anyone, contained the decomposed remains of a snail which had found its way to the bottle at the factory. X purchased the bottle from the retailer and treated the plaintiff, a lady friend (the ultimate consumer), to its contents. In consequence partly of what she saw and partly of what she had drunk, she became very ill. She sued the manufacturer for negligence. This was, of course, no contractual duty on the part of the manufacturer towards her, but a majority of the House of Lords held that he owed a duty to take care that the bottle did not contain noxious matter and that he was liable if that duty was broken.
The judicial committee of the Privy Council affirmed the principle of Donoghue’s case in Grant v. Australian Knitting Mills Ltd.  Thus contractual liability is completely irrelevant to the existence of liability in tort. The same facts may give rise to both.
Another discrepancy between contracts and torts is seen in the nature of damages under each. In contracts the plaintiff will be claiming liquidated damages whereas in torts he will be claiming unliquidated damages. When a person has filed a suit or put a claim for the recovery of a predetermined and fixed sum of money he is said to have claimed liquidated damages. On the other hand when he has filed a suit for the realization of such amount as the court in its discretion may award, he is deemed to have claimed unliquidated damages.













Chapter 4
BASIS SUBJECT MATTERS OF THE LAW OF TORTS


4.1 Negligence
In the modern law of tort, the word negligence has two meanings: Firstly, it indicates the state of mind of a party in doing an act and secondly, it means a conduct which the law deems wrongful.
The tort of negligence is a tort which can be committed both, person and property.
Negligence in the sense of conduct refers to the behavior of a person who, although 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 the 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 manifest 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.

4.1.1 Definition and Essentials
Negligence as a specific tort has been defined by Winfield thus: "Negligence as a tort is the breach of a legal obligation to take care which result in damage, undesired by the defendant, to the plaintiff. Thus its ingredients are: (1) A legal duty on the part of A toward B to exercise care in such conduct of A as falls within the scope of duty, (2) Breach of the duty, (3) Consequential damage to B." Lord Wright in the case of Lochgelly Iron Coal Co. v. M. Mullan,  said: " In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing, "In the well-known definition of negligence by Alderson in Blyth v. Birmingham Water Works Co.,  we can discern the meaning of negligence in its objective sense: "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a reasonable and prudent man would not do."
We can define negligence covering both its aspects in the following way: "Negligence means a non intentional failure to conform the conduct of the reasonable man in respect of the consequence in question and it therefore involves both a subjective and an objective inquiry."

4.1.2 Elements of Negligence
(a)    Defendant must have breached the standard of care.
(b)    Defendant must have owed a duty to the plaintiff.
(c)    The defendant’s breach of the standard of care has to have been the actual cause of the plaintiff’s injury.
(d)    The defendant’s breach of the standard-of-care has to have been the proximate cause of the plaintiff’s injury.
(e)    The plaintiff has to have suffered an injury.

4.1.3 Cases Reference on Negligence
The landmark case on negligence is Donoghue v. Stevenson.  (It has already been discussed in the earlier chapter).
In Randall v. Tarrant,  where there was a collision between the plaintiff 's car which he had left stationary on the roadside, while he himself walked to the adjoining field and the defendant 's moving tractor, the defendant, the driver, was held liable for the negligence. The Court of Appeal held that where there was a collision between a moving vehicle and a stationary vehicle to show that he had taken all reasonable care and on the facts the defendant had failed to show that he had taken all the steps which reasonably ought to have been taken in the circumstances and accordingly the defendant was negligent.
In McDonald's Coffee Spell case, an American court case that became a cause célèbre for advocates of tort reform. An 81-year old woman received third degree burns from spilled coffee purchased from the restaurant chain and sued to recover her costs. The coffee that patrons bought at the drive-through, it turns out, was heated to be much hotter than the coffee they served inside was. The jury found the conduct of McDonald's so objectionable that they not only awarded her compensatory damages, but awarded the woman millions of dollars in punitive damages. Many casual observers considered this excessive. The punitive damages were later significantly reduced by a judge on appeal, though this fact is not as widely known as the jury's initial decision.
In McGhee v. National Coal Board , the appellant was sent by the respondents, his employers, to clean out brick-klins. He suffered the skin disease of dermatitis on account of unclean surroundings. Neighed washing neither soap nor water facilities for cleaning were provided. The House of Lords ruled that a defendant was liable in negligence to the plaintiff if the defendants ' breach of duty has caused, or materially contributed to, the injury suffered by the plaintiff, notwithstanding that there were other factor for which the defendant was not responsible which has contributed to the injury.
In Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godpole,  The Bombay High Court said this,: A mistaken diagnosis is not necessarily a negligent diagnosis. A practitioner can only be held liable in this respect if his diagnosis is so palpably wrong as to prove negligence, that is to say, if his mistake is of such a nature as to imply an absence of reasonable skill and care on his part, regard being had to the ordinary level of skill in the profession."
So from the above case analysis we can easily realise that if the tort law is applicable in Bangladesh many of such negligent cases can easily be handled.

4.2 Defamation
The right of each man during his lifetime to the unimpaired possession of his reputation and good name is recognised 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, honour 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 hatred, contempt or, ricule, 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.

4.2.1 Who May Be Defamed
• The dead cannot be defamed no matter how distressing to the relatives and friends. If, however, it affects the family they may bring an action.( Krahe v TCN Channel Nine Pty Ltd).
• If the objects for which the corporation is formed do not include obtaining financial gain for its members or cooperators, or the corporation employs fewer than 10 persons and is not related to another corporation.
• A trading corporation can sue: South Hetton Coal v NE News.
“A company cannot be injured in its feelings; it can only be injured in its pocket. Its reputation can be injured by a libel but that injury must sound in money. The injury need not necessarily be confirmed to loss of income. Its goodwill may be injured”. (Lord Reid in Lewis v Daily Telegraph)

4.2.2 Case Reference on Defamation
Imputations are considered by reference to the “ordinary, reasonable, fair minded members of society”: Reader’s Digest Services Pty Ltd v Lamb, the meaning is clear, no reading between the lines.
A question of interpretation, depending on the circumstances, the mode and the context of publication:   Charleston v News Group Limited  - Plaintiffs complained about photos of their heads and shoulders displayed above semi-naked models, the whole portraying sexual activity. No liability as the accompanying article made it clear the matter was lifted from another publication and criticised it as a form of pornography
This was criticised by Kirby J in Chakravarti v The Advertiser Newspaper on the basis that it doesn’t reflect the realities of the way in which people read newspapers.
• It is defamatory to repeat a defamatory statement made by another person, even though the statement makes clear that the view stated is not that of the writer or speaker. When assessing the content of statement – strict liability applies: Cassidy v Daily Mirror Newspapers.
• False Innuendo – used to establish defamatory meaning
Recipient of the statement may deduce (conclude or derive) from the words alone. Inferred or indirect meaning which the ordinary person would draw from the material:
In Lewis v Daily Telegraph Ltd  articles published in the Daily Telegraph and Daily Mail with headlines ‘Enquiry on Firm by City Police’ and ‘Fraud Squad Probe Firm’ which stated the police were inquiring into affairs of a company of which the plaintiff was chairman. It was held on appeal that the words in question were not capable of inferring guilt of fraud in their ordinary meaning.



The court will generally require the Plaintiff to specify the defamatory sense that they understand the words to contain.  Random House Pty Ltd v Abbott Defendants had published a statement indicating that two politicians had changed party immediately after having sex with an unnamed female, who later married one of the Ministers. The innuendo that each politician was prepared to abandon his political principles in exchange for sexual favours was readily drawn. Defamation held.
The probability that a plaintiff will recover damages in a defamation suit depends largely on whether the plaintiff is a public or private figure in the eyes of the law. The public figure law of defamation was first delineated in New York Times v. Sullivan,  In Sullivan, the plaintiff, a police official, claimed that false allegations about him appeared in the New York Times, and sued the newspaper for libel. The Supreme Court balanced the plaintiff's interest in preserving his reputation against the public's interest in freedom of expression in the area of political debate. It held that a public official alleging libel must prove actual malice in order to recover damages. The Court declared that the First Amendment protects open and robust debate on public issues even when such debate includes "vehement, caustic, unpleasantly sharp attacks on government and public officials." A public official or other plaintiff who has voluntarily assumed a position in the public eye must prove that defamatory statements were made with knowledge that they were false or with reckless disregard of whether they were false.

4.3 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 neighbour 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 neighbour 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.

4.3.1 Case Reference on Nuisance
A private nuisance is an act, or omission, which causes inconvenience or damage to a private person, and is left to be redressed by action. There must be some sensible diminution of these rights affecting the value or convenience of the property. "The real question in all the cases is the question of fact, whether the annoyance is such as materially to interfere with the ordinary comfort of human existence" (Lord Romilly in Crump v. Lambert )
In Boomer v. Atlantic Cement Co. a cement plant interfered with a number of neighbors, yet the cost of complying with a full injunction would have been far more than a fair value of the cost to the plaintiffs of continuation. The New York court allowed the cement plant owner to 'purchase' the injunction for a specified amount—the permanent damages. In theory, the permanent damage amount should be the net present value of all future damages suffered by the plaintiff.
Rylands v Fletcher   is a landmark English tort law case. It applied the doctrine of strict liability.  John Rylands constructed a reservoir on land he was renting to supply water to his steam-powered textile mill. Thomas Fletcher operated mines on nearby land and had tunnelled up to old disused mines which were under the land where Rylands' reservoir was located. Both parties rented land from Lord Wilton and both were engaged in lawful uses of the land. The lands were in Lancashire, in an area known for its mines. Rylands employed independent contractors and engineers to do the work of building the reservoir which was completed in December 1860. While excavating the construction site, the contractors came across some disused mine shafts which had been loosely filled with marl and soil. No attempt was made to seal these shafts. These shafts actually led, via a series of interconnected shafts and tunnels, into Fletcher's mines and land. Water from Rylands' reservoir flooded into Fletcher's mines on 11 December 1860, just days after completion of the reservoir and after it had been partially filled. There had been no excessive rains or local floods. Fletcher sued Rylands.
The case started in the local Court of Liverpool Assizes (Summer Session) in 1861. The Liverpool Court found in favour of the Plaintiff Fletcher on the basis of trespass and nuisance. Actions in the torts of nuisance and trespass were only available to those with a legal interest in land. Rylands successfully gained an order for the matter to be heard by the Court of Exchequer before three judges where the previous decision was overturned with two judges deciding for the Defendant Rylands. The decision was based on trespass requiring direct human involvement in the invasion of an interest (the quiet enjoyment of land), which required intent or negligence, and Rylands had been engaged in a reasonable and lawful act, with no ill-intent or negligence, and there was no nuisance as there is nothing offensive to the senses about water. Some legal commentators interpret this as a case of the victim being the one to bear the cost of the accident.
Fletcher appealed to the Exchequer Chamber of six judges, in 1866. The prior decision was overturned in favour of the appellant Fletcher.
The House of Lords dismissed the appeal and agreed with the determination for Fletcher, in 1868. Lord Cairns, in speaking for the House of Lords, stated their agreement of the rule stated above by Justice Blackburn, but added a further limitation on liability, which is that the land from which the escape occurs must have been modified in a way which would be considered non-natural, unusual or inappropriate.
The Court found in favour of Fletcher and ordered Rylands to pay for all the property damage to the mine. The Court agreed that Rylands had a duty in maintaining the reservoir and of being liable for all harm caused by it with broad scope of liability (strict but not absolute) with the extent of defenses described above by Blackburn J and Lord Cairns.

4.3 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 tortfeasor 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.

4.4.1 Case Reference on Trespass to land
Bernstein  v Skyways & General Ltd - Skyway , defendant had an idea for a business – why don’t we fly over their properties and take pictures of their homes.  then we will sell them photos of their own properties – so they went to Bernstein and tried to sell him a photo of his house – he is basically told them to piss off and that he “owned the heavens” above his property – he sued in trespass over the issue and the court said, sorry, primarily because there was no support for his view that his rights extended right up in the sky to the heavens – they said you restrict the height so as is necessary “for the ordinary use and enjoyment of the land and structure upon it” – so essentially the plane flying over did not impact the enjoyment or ordinary use of the land.
Kelson case v Imperial Tobacco, two commercial premises next to each other.  The sign of one shop overhung the neighbours premises by 20 cm.  This was held to be trespass because it interfered with the ordinary use and enjoyment of the adjoining property as it partially blocked customers viewing the neighbours shop sign etc. It is therefore trespass if it interferes with the ordinary use and enjoyment of the property.
A continuing trespass is a failure to remove an object (or the defendant in person) unlawfully placed on land. It will lead to a new cause of action each day for as long as it lasts (Holmes v Wilson and others).
Trespass to land is an intentional tort. However, intention for the act is required, not an intention to trespass. Consequently, deliberate entry is required and lack of knowledge as to trespass will not be a defence (Conway v George Wimpey & Co).
A negligent entry is possible and was considered in League Against Cruel Sports v Scott.  The Ps owned 23 unfenced areas of land. Staghounds used to enter the land in pursuit of deer. The Ps sued the joint Masters of the Hounds for damages and sought an injunction against further trespasses. Park J issued an injunction in respect of one area restraining the defendants themselves, their servants or agents, or mounted followers, from causing or permitting hounds to enter or cross the property. Damages for six trespasses were awarded. The judge said:
"Where a master of staghounds takes out a pack of hounds and deliberately sets them in pursuit of a stag or hind knowing that there is a real risk that in the pursuit hounds may enter or cross prohibited land, the master will be liable for trespass if he intended to cause the hounds to enter such land or if by his failure to exercise proper control over them he causes them to enter such land."












Chapter 5
NEED FOR INTRODUCING THE LAW OF TORT IN BANGLADESH

In Bangladesh tort law in not introduced yet. In Bangladesh penal code, civil procedure code, criminal procedure code there are short application of tort law. From the above case studies it is clear that it is very essential for a country to adopt tort law. Country like India, Sri Lanka, Nepal, USA, and UK adopted tort law.    
The context of the law of tort in particular one tort, has dominated the development of the common law of torts in the twentieth and twenty-first centuries, namely, the tort of negligence and its specific off-shoots relating to Employer’s liability, Occupiers’ liability, Liability for animals and Product liability. The key feature of the tort of negligence is that it attributes responsibility on the basis of principles of personal fault that require individuals to adhere to a standard of reasonable care. A general feature of the tort of negligence is that, for the most part, it is concerned with actions that cause physical harm, although there is a growing body of case law that also attributes responsibility for acts that cause foreseeable economic harm.
Despite the dominance of the tort of negligence, there are other torts, which seek to protect other interests. There is group of torts, as trespass to the person, which focus on personal integrity and may, to an extent, be relevant to the issue of individual privacy. Tort law also recognizes the interests and responsibilities of land owners, seeking to balance the right of a landowner to use his land as he wishes, against the right of neighbours to expect landowners to operate and maintain their land in a reasonable manner. Other torts protect both personal and business reputations. Thus, it is a tort to defame a person by seeking, intentionally, to lower that person’s reputation in the mind of right-thinking persons generally. In relation to chattels and business interests, there is a range of diverse torts, broadly based on intentional conduct that protects the interests of a person who owns or is in possession against deliberate interference by others and torts that guard against conspiracy and inducement of another to commit a breach of contract.

5.1 Compensation for accident case
Bangladesh Bureau of Statistics (BBS) in its annual publications provides data relating to road accidents. The Statistical Year Book (2000) contains figures from 1987 to 2000. The total number of accidents during the above period ranged from 1,521 in 1987 to 3,419 in 2000, a rise of 125 percent. Of these, the casualities in 1987 was 1,156, which rose by 164 percent in 2000, thus increasing the number to 3,050. The number injured was 1,988 in 1987, which rose to 2,653, a rise of 33 percent. This is an issue of major concern. 
Since 1977 there have been 248 motor launch accident records by BIWTA with a loss of 2309 lives, 374 persons are injured and 208 persons are missing.  Most of the accidents happened because of the negligence of the Launch operator and their owner. Whenever any launch accident occurs basically the government pays minimum amount as compensation to the victim in case of death. The owner is exempted from giving compensation the individual victim.
In practice, much of the law of tort is concerned with compensating the victim of the defendant’s accidental wrongdoing. Accordingly, at a general level, the function of a remedy in the law of tort is to relieve the claimant in respect of the loss or damage he has suffered rather than to punish the defendant. There is a range of means by which the compensation objective is sought to be achieved. Generally, the tort system is concerned with wrongs in the sense that the defendant is required to compensate the claimant in respect of damage caused by some fault-based or culpable conduct on his (the defendant’s) part. In this sense, tort liability rules are concerned with loss shifting in that they make the defendant responsible for the loss suffered by the claimant because he (the defendant) is in some way to blame for that loss.
In a study (2003) referred  to earlier has also drawn attention to the economic impact on the poor caused by road accidents. It is said that the heads of households or their spouses are often the fatal victims of road accidents. This has an adverse economic impact on other members of the families. It is estimated by the study that about 32 percent of road deaths occurred to poor heads of households or spouses compared to 21 percent for the non-poor. The study findings indicated that for the 70 percent poor, the household income, food consumption and food production decreased following road deaths. For the non-poor, the impacts were less with 54 percent reporting loss of income.
If there was application of the law of Tort in Bangladesh than the owner of the launch had to pay compensation to each of the victims of the accident.

5.2 The Law of Tort as a Deterrent to Harm-Causing Activities
In the law of Tort, the desire to deter a person from engaging in activities which cause harm to others is seen as a primary objective If the law imposes liability in damages for certain acts, this would appear to serve a deterrent purpose, since few people will wish to engage in conduct which they realize is likely to result in them having to pay another in respect of the harm which has been caused. Even in professional negligence cases where tort rules might conceivably have a deterrent effect, the inadvertence argument once more becomes relevant. 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.  

5.3 Wrong done by Bureaucrats and Autonomous bodies
As per the Law of Torts nobody including a banker has any right to injure others intentionally or innocently. At present, in most cases, the public is getting injured by the wrongful acts of the bureaucracy and their instrumentalities, agencies and other bodies like banks, financial institutions, other utility service providers etc.
The wrong doings of bankers, if any, cause legal damage to the affected person, apart from actual damage, if any. Such damages commence the moment the wrong doings are committed. On the other hand, they owe a duty of care towards the assisted borrowers. If any injury is caused on account of the said wrong doings or violation of the duty of care, the affected person is entitled for compensation for unliquidated damages. If the wrongdoings are willfully caused, knowingly continued and if they are arbitrary, unconstitutional and oppressive, the affected person is entitled for aggravated and exemplary damages. The Bank Nationalization Act of 1972 has given an indemnity to bankers for all of their acts except willful negligence.
In case, the acts and omissions of the bank officials are not keeping the above aspects in practice, it would amount to wrongdoings, resulting in compensation for the loss and damages, legal as well as actual which become due the moment the wrongdoings are caused.
Apart from the situation in banks and financial institutions, there is hardly any remedy for tortious offence in Bangladesh due to lack of awareness in the society and the legal system. There is hardly any case for such office. We have observed few cases of tort against doctors but in most of the cases we see "compromise" between parties. These trial processes sometimes require expert opinion and in most of the cases, the experts are not willing to give opinion against fellow members of own profession.
The bureaucrats and bankers are indemnified from professional liabilities but others are not indemnified so far. But there is hardly any litigation or remarkable judgment for any offence involving tort. We are suffering for wrong treatment, lack of service from local bodies, utility providers, neighbours having administrative and political power connection, mastans etc. We consider all these sufferings as part of our life and society. There is very frequent news of arrest and torture of innocent persons but there is no visible remedy in law under the justice system in our country.
In the above consideration, we must have law of Tort to improve the service of government, professionals, service providing agencies both in public and private sectors etc.

5.4 Protection of the Consumer’s right
Another thing, which needs highlighting at this juncture, is the Consumer Protection, in Bangladesh. The demand for a self certain consumer protection legislation began in the early 80's last century. The civil society and various consumer rights promoting organizations raised their voice. The new Chapter began on 6th April 2009 with the adoption of the Consumer Rights Protection Act 2009 (hereinafter CRPA) as a comprehensive legislation in the national assembly. Articles 18 and 15 of our constitution have served as the basement upon which the Act has been formulated. The purpose of the CRPA 2009 is to define standards and to set up procedures to promote and protect consumer interest. In its preamble the Act stipulates: “...it extends well beyond the mere protection of economic interests of the consumers, to become part of a mere general social policy on consumer affairs.” But a close analysis shows that the Act has failed to develop the existing system, containing so many loopholes. It is now a big question whether this Act will serve as a protecting shield to the consumers. We shall discern the demerits as we proceed. The Act provides that any complaint concerning defective product resulting in substantial financial or physical damage must be filed within 30 days. If pondered over the fact, we can see there are many long-term effects which can not be identified readily after using the products. 30 days time span is thus too short a scale. Thus the Act has failed to keep up with reasonableness and medical science. Sec 71(1) of the Act stipulates no individual can make any complaint about violation of consumer rights to the court of a 1st class magistrate or the CMM. So the people are placed at the mercy of the Council for enforcing the rights given to them, which would ultimately prove to be a nugatory.
If there was application of the law of Tort these questions would not have arise.









Chapter 6
CONCLUSION

“Truly speaking the entire law of torts is founded and structured on morality. Therefore, it would be primitive to close strictly or close finally the ever expanding and growing horizon of tortious liability. Even for social development, orderly growth of the society and cultural the liberal approach to tortious liability by court would be conducive.”-  Justice Sahai .

Tort as we know today has evolved over the centuries and has grown tremendously in countries such as the England, United States of America, and other progressive countries and to a certain extent in India. In India, the development of the absolute liability rule in the M.C. Mehta v. Union of India  case and the Supreme Court’s direction on Multi national corporation Liability, recognition of Governmental tort by employees of government, principles on legality of State, evolution of tort of sexual harassment, grant of interim compensation to a rape victim, and award of damages for violation of human rights under writ jurisdiction, including a recent Rs.20 crore exemplary damages in the Upahaar Theatre fire tragedy case by the Delhi High Court are significant changes in the tort law of India. There have been a number of enactments such as the Public Liability Insurance Act, 1991, Environment Protection Act, 1986, Consumer Protection Act, 1986, Human Rights Protection Act, 1998, Pre-Natal Diagnostics Techniques Regulations and Prevention of Misuse Act, 1994, embodying the new principles of tortious liability in India. The Motor Vehicles Act, 1988 and judicial interpretation continue to contribute to development of accident jurisprudence. The unfortunate Bhopal Gas Leak disaster has triggered a new path of tort jurisprudence, leading to environment tort, toxic torts, governmental torts, multi national company’s liability, congenital torts, stricter absolute liability, etc. Still the Indian Law Reports furnish in this respect a striking contrast to the number of tort cases before the Courts.
In Bangladesh, we have ignored to introduce the law of Tort in our legal spectrum. We need specific codification of the law of Tort which can insure not only ‘access’ to justice but insurance to ‘justice’. Undoubtedly a code is useful, but it is well to recognise that this branch of law is still in the process of growth and while it would be difficult to prepare a code, it would not also help a proper development of the law to do so.  Following the instance of India where the law is also not codified, the judges and the lawyers can play their contribution for the initial growth of the law of Tort in Bangladesh.
Consideration should also pay for the assurance of proper justice.  Failure of aggrieved persons to assert their legal rights is perhaps to be ascribed not merely to insufficient appreciation of such rights but to other causes as well, e.g., difficulties in proving claims and obtaining trustworthy testimony, high court fees, delay of courts. The elimination of difficulties which obstruct aggrieved parties in seeking or obtaining remedies which the law provides for them is a matter which is worthy of consideration. Among other things, it is suggested that the court-fee should be decreased to cause more cases to be entertained in the courts. It has been desired that lawyers must take on themselves the responsibility of educators of litigants from all walks of life, to enable them to start right actions including actions for recovery of damages for the injuries sustained.
If these lacunae are removed, Bangladesh would also witness a growth in tort litigation.






REFERENCES

Books 
1.    Ratanlal and Dhirajlal, The Law of Torts, 24th ed. (Nagpur: Wadhwa and Company, 2004).
2.    Durga Das Basu, The Law of Torts, 9th ed. ( Culcata: Kamal Law House, 1979).
3.    Noshirvan H. Jhabvala, The Law of Torts, 25th ed. (Mumbai: C Jamnadas & Co, 2008).

Web pages
1.    http://www.indlawnews.com/display.aspx?3529, accessed on 19 March 2010].
2.    [http://www.legalserviceindia.com/article/l129-Torts-In-India.html, accessed on 19 march 2010].
3.     [http://www.legalserviceindia.com/articles/torts_s.htm, accessed on 12 January 2010].
4.    [http://www.law.nyu.edu, accessed on 12 January 2010].
5.    [www.bu.edu/lawlibrary, accessed on 21 January 2010].
6.    [http://www.studentatlaw.com/articles/42/1/Tort-Law---Topic10-Defamation/Page1.html, accessed on 27 January 2010].
7.    [http://en.wikipedia.org/wiki/Nuisance, accessed 0n 22 February 2010].
8.    Importance of Tort, [http://www.oup.com/uk/orc/bin/qanda/sample_chapters/oughton_chap02.pdf, accessed on 21 January 2010].
9.    [http://driveandstayalive.com/info%20section/news/individual%20news%20articles/x_040418_economic-cost-of-road-accidents-in-bangladesh.htm, accessed on 12 January 2010].
10.    [http://eprints.ukm.my/155/1/Vol.%25201%2520Issue%25202%2520-%2520Naznin.pdf, accessed on 18 January 2010].
11.    [http://eprints.ukm.my/155/1/Vol.%25201%2520Issue%25202%2520-%2520Naznin.pdf, accessed on 18 January 2010].
12.    M. S. Siddiqui, ‘Importance of Tort Act in restoring justice Importance of Tort Act in restoring justice’, [http://www.thefinancialexpress-bd.com/2009/06/10/69257.html, accessed on 30 January 2010].
13.    [http://www.legalserviceindia.com/articles/torts_s.htm, accessed on 12 March 2010].
14.    [http://www.scribd.com/doc/28074642/Introduction-to-Tort, accessed on 13 march 2010].
15.    [http://www.legalserviceindia.com/articles/torts_s.htm, accessed on 12 March 2010].

Cases
1.    Lambert v. Bessey, 13(1681), C.W.N. 501.
2.     Donoghue v. Stevenson, (1932) A.C 562.
3.    Austin v. G.W. Railway, 2(1868) Q.B.442.
4.    Grant v. Australian Knitting Mills Ltd, (1936) A.C 86.
5.    Vaughan v. Menlove, 3(1837) Bing NC 468.
6.    Lochgelly Iron Coal Co. v. M. Mullan, (1914) A.C. 25.
7.    Blyth v. Birmingham Water Works Co,11(1856) EX Y 784.
8.    McGhee v. National Coal Board, 3(1972)  ALL ER 1008.
9.    Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godpole, (1969), AIR, SC 128.
10.    South Hetton Coal v NE News, 1(1894) Q.B. 133.
11.    Lewis v Daily Telegraph, 2(1963), All E.R. 151.
12.    Charleston v News Group Limited, (1995) All E.R. 321.
13.    : Cassidy v Daily Mirror Newspapers, 2(1920) K.B. 331.
14.    New York Times v. Sullivan, 376 U.S. 254.
15.    Lewis v Daily Telegraph Ltd, 2(1963), All E.R. 151.
16.    Crump v. Lambert, (1867) L.R. 3 Eq. 409.
17.    Rylands v Fletcher, (1868) 3 H.L. 330.
18.    Bernstein  v Skyways & General Ltd – Skyway, 1(1978) Q.B. 479.
19.    Holmes v Wilson and others, 10(1839) A&E 503.
20.    Conway v George Wimpey & Co, 2(1951) KB 266, 273.
21.    League Against Cruel Sports v Scott, 2(1985) All E.R. 489.
22.    M.C. Mehta v. Union of India, (1988), AIR, SC, 1037.