A classic tort of negligence

On 29 March 2018, a seven year old child was killed due to a lift malfunction in her own home in Shantinagar, Dhaka. The victim, Alvira Rahman, lived with her parents in a flat on the 14th floor of the apartment complex named Green Peace. As Alvira was leaving the lift, the doors suddenly closed in on her, trapped her from both sides and bean moving upwards, in response to a lift call from an upstairs apartment. Alvira, with the little strength she could muster, tried to push the doors aside but to no avail since the sensors were not functioning. Ultimately she had her head smashed on the roof of the lift. Her parents rushed her to the hospital where she was pronounced dead.

Residents of the building angrily blamed the building authorities for not taking any step to repair the non-functional lift sensors despite receiving repeated warnings and complaints from them. They also pointed out that no liftmen were provided by the building authorities either.

Lift accidents in Dhaka should come as no surprise to anyone since the lack of maintenance of old lifts or the failure to repair faulty lifts. Just a few months back in late 2017, an elevator operator similarly died after falling from the fifth floor to the basement of an RMG factory in Savar since the lift door opened in response to his pressing the lift button without the lift actually arriving. Lift deaths and injuries like this serve as a classic example of why there is an excruciating need for the enforceability of tort of negligence in Bangladesh. This is because tragic deaths such as these are not the result of intentional wrongdoing (in the sense that the building authorities did not have an intention to kill or injure residents of the building) and therefore do not fit squarely with the standard common law test of criminal liability.

Alvira's case is wrongful in the sense that it was a result of someone's carelessness (be it the building authority or the lift manufacturer) which led to the fatal, albeit unintentional, consequence of a little girl's death. This is where the tort of negligence comes in since it does not require such wrongdoing to be intentional (as criminal law usually does) but rather the key legal test becomes one of 'reasonable foreseeability'. As such, even if the building authority may not have intended to kill Alvira, it may well be said that it was reasonably foreseeable that their prolonged failure to repair something as frequently used as a residential lift, would result in the injury or even death of the building's residents. The case is likely to come under one of the specific liability regimes under the tort of negligence such as occupier's liability or product liability. If the building authorities are sued then it would be a case of occupier's liability, whereby an occupier (meaning someone exerting a 'sufficient degree of control over a premises'), owes a duty of care to ensure that 'visitors' (which would include residents) are reasonably safe within their building (Wheat v Lacon and Co Ltd, 1966).  When the visitor in question is a child, such as Alvira, the standard of care imposed on the occupier becomes even more stringent since children are likely to be less careful than adults and are therefore especially vulnerable to any potentially hazardous zones of the premises (Glasgow Corporation v Taylor, 1922). On the other hand if the fault was a defect within the product itself (i.e. the lift), then Alvira's parents may have a claim against the lift manufacturer under product liability, where the inference of negligence often borders on strict liability, where it can be shown that the fault was in fact a manufacturing defect.

While monetary damages, no matter how high, will certainly not minimise or soothe the debilitating pain of Alvira's grieving parents, imposing tortious liability on responsible parties (like building authorities) will set a much needed legal precedent which will force otherwise negligent parties to carry out their basic functions properly so that tragic lift deaths and injuries which are wholly preventable are in fact prevented.

The writer is Researcher, Bangladesh Institute of Law and International Affairs (BILIA).