Sewerage system and the tortuous liability

by Al Amin Rahman
Sewerage system

A file photo shows people looking into a sewer, near the Dhaka Commerce College at Mirpur in the capital Dhaka, where Junayed fell and died. — New Age

MANHOLES and sewers in Bangladesh have reportedly been uncovered and unprotected for a long time. People often fall into these open manholes and become injured. Manhole covers on many roads are found to have been missing for an indefinite period. WASA officials, environmentalists and urban planners, being accountable for this fact, claim that manhole covers are stolen at regular intervals. However, this cannot justify the fact that they owe a duty of care towards the citizens to ensure a safe sewerage system.
In addition, the sewer leakage problem has been stretched to alleys and by-lanes in cities of Bangladesh. The Water Supply and Sewerage Authority in cities have often been found as failing to clean up the sewers regularly. As a result, the sewers have waste piling up to a point that sewage have started to seep out through the manhole covers. ‘Dhaka City State of Environment’, published jointly by the Department of Environment, the Bangladesh Centre for Advanced Studies and the United Nations Environment Programme, says that the overflow of sewage occurs due to damaged sewers and manholes, ineffective design of the existing sewerage system, inadequate monitoring of the system, pipes being smaller in diameter than the required size and excessive flow of sewage from high-rises into a system that has not been designed to accommodate the current increased sewage flow.
The local government, rural development and cooperatives ministry has taken a few positive steps while overseeing this issue of the sewerage system. For example, the LGRD and cooperatives minister has given a phone number to file complaints if anyone finds a defective or uncovered manhole in the capital. The ministry assured that the manhole covers would be repaired or new covers provided immediately if a complaint was filed.
Despite all these, the unfortunate incidents are not unfamiliar. On December 27, 2014, four-year-old Jihad was found dead inside the abandoned 600ft deep water pump pipe in Shahjahanpur Railway Colony in the capital, almost a full day (23 hours) after he had fallen into it.
On December 8, 2016, six-year-old boy Nirab fell into the drain in a place named Kadamtali in the city. He was found dead more than four hours later at the Buriganga end of the drain. The chairman of the Children Charity Bangladesh Foundation filed a petition with the High Court seeking Tk 3 million in compensation for the death of minor boy, Ismail Hossain Nirab. The petitioner sought a rule asking the relevant authorities why they would not be ordered to pay the boy’s family the compensation. He also sought an order for a list of lidless manholes and of wells and pipes that pose risks in the capital. The petition also wanted to know the identity of the owner of the land where the incident happened and the steps that police had taken following the accident. Thirteen people, including the home secretary, Dhaka WASA chairman and Dhaka South City Corporation mayor have been made respondents to the petition.
After Nirab’s death, on July 14, 2016, a girl, Sanjida, fell in a sewer and died beside the Mohakhali bus terminal; and on July 22, 2016, a boy named Junayeed fell into a sewer near the Dhaka Commerce College at Mirpur and died. The High Court on August 2, 2016 directed the Dhaka North City Corporation and the Dhaka South City Corporation to replace faulty covers of manholes and properly fix the covers of manholes and sewers in Dhaka within 15 days. It asked the mayors of the Dhaka North and the South City Corporation and the managing director of the Dhaka Water Supply and Sewerage Authority to submit a report after complying with the order on October 13, 2016. The court also issued a rule on the government and two city corporations to explain in four weeks as to why the court would not order them to compensate families of children, Junayed and Sanjida, who fell into sewers through the open manholes and died, with Tk 20 lakh each.
The Fatal Accident Act 1855 has been enacted in Bangladesh to provide compensation to families for losses occasioned by the death of a person caused by actionable wrong. When no action or suit is maintainable in any court against a person who, by his wrongful act, neglect or default, may have caused the death of another person, and it is often right and expedient that the wrong-doer in such cases should be answerable in damages for the injury so caused by the person. The act of 1855 gives a right to the beneficiaries/dependants — ie the wife, husband, parent and child, if any, of the deceased — to file a suit for damages against someone who’s wrongful act, neglect or default has caused the death. In every such action the court may order such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action will be brought. The court by its judgement or decree will direct how the recovered amount of damage will be distributed amongst the parties, or any of them, after deducting all costs and expenses.
Firstly, under Section 1, this act of 1855 provides for damages for pecuniary loss suffered by certain members of the family of the deceased as a consequence of death. Secondly, pecuniary loss resulting to the estate of the deceased is recoverable under Section 2.
The act of 1855 does not itself has any principle for calculating the measure of such loss. There is no hard and fast rule for determining the matters that should be taken into consideration for estimating damages. However, for estimating damages the court may consider factors such as the age of the deceased, his or her health, earning capacity and even the chance of advancement, size of the deceased’s family, amount of dependency of the dependants, etc. Damages can be recovered in respect of the reasonable expectation of the value of the services that the deceased might have rendered to the members of the family. Although no rule of mathematic calculation can be adopted in every case, yet it is the duty of the plaintiff to adduce some evidence to afford the court a reasonable basis for the ascertainment of damages suffered. The value of the life lost, does not depend on the number of beneficiaries but upon the earning capacity of the deceased.
In this connection, another stem of law may also be considered. The law of tort has been adopted by many countries worldwide. It is in wide practice in many of our neighbouring countries. In Bangladesh, it is not more than a handful of tort cases that has gone to court since we got independent in the year 1971. More surprisingly, among these, only a few number of tort cases have been successful.
On the other hand, if we look into the English legal system, we see a different scenario. In the English Tort Law, one of the landmark cases is Hughes v Lord Advocate [1963]. The fact of this case provides that the employees carrying out street works left a manhole uncovered inside a tent. A number of lit paraffin lamps were left at the corners of the tent. The boy entered the tent with one of the lamps. The lamp fell into the whole, causing an explosion; and the boy was badly burnt. The court held that although this was unlikely sequence of events, some fire-related damage was a foreseeable consequence of leaving the site unattended. All the judges in the case allowed the case in favour of the appellant arguing that although the accident occurred was not identical to what was expected does not mean that the person is not liable if the type of accident is same as of the type which was foreseeable.
A similar approach was taken in Jolley V London Borough of Sutton [2000], where a teenage boy was seriously injured by an abandoned boat which fell onto him. The House of Lords took the view that some harm was reasonably foreseeable in the circumstances and the local authority was held liable as they should have removed the boat from the area.
Therefore, if we can adopt and implement the principle of tort law more often than now in such cases, we can then expect to see lesser accidents as well as financial gain of the family of the victim. There is no doubt that the act of 1855 is a vital instrument for awarding compensation to the families of victim in such cases, however. It is hoped that the tort law regime, if introduced, would add up new dimensions in this arena.

Al Amin Rahman is a barrister and advocate of the Supreme Court of Bangladesh. 

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