Tuesday, December 8, 2015

Why Tort Law needs to be implemented in Pakistan

Tort law is a civil wrong that one commits towards another which results in legal liability regardless of a contractual relationship. So, for example, if a restaurant serves their customer expired food, they can face legal liability since they have a “duty of care” to all those who consume food on their premises.

In fact every single law student will be well-versed in Donaghue v Stevenson (1932), a case which harks back to before World War II.

The seminal case laid the basic foundations for negligence law all thanks to a dead slug in a ginger beer bottle. Two friends met up for drinks at a cafĂ© when Ms Donaghue ordered a ginger beer only to find the offending slug in the drink.  She claimed to get abdominal pain and shock from the sight of the slug and was awarded £500 in damages (a phenomenal sum at the time). The court found that the manufacturer of the beer had a duty of care to all those who consumed his beer

Since that time a comprehensive body of law has developed which includes road traffic accidents and medical negligence cases. However, in Pakistan (to my knowledge) there isn’t a stringent enforcement of Tort law. Every day we hear and see of countless stories of immense medical negligence involving doctors taking out the wrong organ or poisonous alcohol killing several hapless drinkers or even donkey meat being sold by food vendors.

Just recently on Facebook, there was a story of a doctor who left her heavily pregnant and laboured patient in hospital as she gallivanted home eventually leading her patient to die. Without recourse to the law, individuals are becoming vigilantes and posting images of those who have allegedly wronged in the hope of preventing such deaths.

This is a dangerous approach since anyone could conjure up a story about an innocent person who could then be accused and face the wrath of the public for life.

People are more willing to accept negligence and medical incompetence as the “will of God” rather than do something actively about it. Monetary compensation is the only way of hitting hard against those who flout their duties of care to individuals who are under their care. Instead of citizens taking the law into their own hands, the judicial system needs to set a rigorous system of accountability which can address the fine balance between accountability and opening litigation floodgates.

To prove negligence, one must first:

1. Show that a duty of care existed;

2. Prove that this was breached in a certain way;

3. Prove that this breach caused the harm that resulted.

4. Calculating the damages that need to be paid according to the harm which ensued.

All four elements must be in existence for negligence to be proven. Reliance on medical evidence, witness testimonies, and even CCTV are needed to ensure the correct person is held liable.

The current state of Pakistan’s judiciary system would need a radical overhaul and this doesn’t seem to be something that will happen anytime soon. In the meantime, we can only hope and pray for the day a case like Donaghue v Stevenson graces Pakistani courts.

from The Express Tribune Blog http://blogs.tribune.com.pk/story/28814/why-tort-law-needs-to-be-implemented-in-pakistan/

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