KHALID Mahmood
Mithu, a well-known artist, scriptwriter, video editor and national
award-winning cinematographer died in a tragic incident happened on 07 March
when a humongous rain tree fell upon him along with his rickshaw-puller Abdul
Jalil at Dhanmondi. The tree was uprooted with soil piled around its trunks
slackening in the heavy rain occurred the day before the incident.
Nevertheless, most of our news media reported the incident as accident whereas
the incident was not at all accident rather negligence of local authority in
particular Dhaka South City Corporation (DSCC).
Albeit
it is very common in Dhaka city and almost all over the country to fall into
uncovered manholes, pipes, random fall of billboards, trees and destruction of
life and property etc; yet there exist elected local government as well as law
to prevent these kinds of nuisance. Hence, an aggrieved person is not only entitled
to bring legal action against the local government authority for nonconformity
of its duty but also is entitled to get damages from that body.
However,
according to clause 24.9 of the schedule of the Local Government (City
Corporation) Act, 2009 the DSCC has legal obligation to remove hazardous tree from
road side. From the incident of Mithu, it is evident that the DSCC was
completely failed to perform its statutory duty.
However,
when services are provided to members of the public, e.g. maintaining a
highway, the public authority owes a duty of care to the public. Duty of care denotes the circumstances and
relationships which the law recognizes as giving rise to a legal duty to
take care. A failure to take such care can result in the defendant being
liable to pay damages to a party who is injured or suffers loss as a
result of their breach of duty of care.
The principle was first
emerged from the pen of Lord Atkinson by his famous neighborhood principle
promulgated in Donoghue v Stevenson [1932] AC 562 case, where he declared that the
concerned must take reasonable care to avoid acts or omissions which they can
reasonably foresee would be likely to injure the persons who are so closely and
directly affected by their act. Subsequently, the concept of duty of care was
further being developed by the House of Lords in Caparo Industries plc v
Dickman [1990] whereas the court putted three questions to determine the liability.
Firstly, was the risk of
injury or harm reasonably foreseeable?
In the present case the answer is yes; it is apparent that the DSCC has omitted
its duty to destruct the dangerous tree which foresee ably could cause damage
to the person or property of the inhabitants of the city. The tree was
deracinated due to heavy rain occurred previous afternoon and the incident took
place next day at about 2.00 p.m. That mean they got sufficient time to take
away the tree. Furthermore, it seems that there was no intervening cause to the
said death. Failure to perform lawful duty of the DSCC is primarily responsible
for this unexpected death.
Secondly,
was there sufficient proximity between the parties? There may be
situations where the risk of personal injury could be foreseen, but it would
not be appropriate to make the defendant liable. “Proximity” in this context
means not physical closeness, but any form of relationship between the parties.
The question is whether the claimant was a member of the group to which a duty
of care was owed. Mithu was not an alien to the city rather a talented
filmmaker who achieved National Film Award as best director for his debut film
Gohine Shobdo in 2010 and a permanent resident of the
locality to whom the city corporation owes full duty of take care.
Finally,
is it fair, just and reasonable, on the ground of public policy to impose a
duty of care upon the corporation? If it would not be fair, just and reasonable
then what would be exact? We have already lost a potential life and another
person, the rickshaw-puller is being injured for the negligence of the DSCC.
The matter of regret is that we love to ignore many matters which ultimately bring
severe consequences for us. Most of the people are not aware of the fact that
the city corporation has some duties for its residents and disobedience of
those duties may rise to bring legal action. Indeed we have very limited
application of tort law in this country. Despite that, an aggrieved person can
initiate legal action for omission of legal duty of a local authority.
Interestingly,
the Act does not suggest any punishment for omission of any of its legal duty
or injury arising out of its negligence. However, there is only one provision
in section 106 that if any employee of the corporation is being unable to
perform his/her duty then the government will direct him/her by written order
to do his/her function within specified time. Mere this provision is not at all
sufficient and cannot make the body accountable. There must be some arrangement
of sanction and compensation for non compliance of its legal duties. Nevertheless,
very recently the High Court Division has asked the government to
compensate the family of a four-year-old child Jihad, who died after falling
into a 600 ft. deep abandoned uncovered tube-well pipe at Shahjahanpur in Dhaka
in December 26, 2014. Now, in absence of any penal or
compensatory stipulation, our judiciary can play vital role to uphold the
rights of the citizen and to build these bodies pro people.
The
city dwellers are continuously paying taxes to the local government for the
development of their beloved city and to get services from the authority.
Additionally, sec. 109 of the mentioned Act makes the mayor and counselors public
servant. Hence, it is the solemn duty of the peoples’ representative to do
their functions with due diligence and ensure safety and security of their
remuneration providers.
