The missing claims

Published August 26, 2021
The writer is a litigator based in Islamabad.
The writer is a litigator based in Islamabad.

IMAGINE that you are driving your car down the road, oblivious to the pains of the world. An overspeeding car from behind rams into your car, smashing the rear lights, and denting the trunk. The jolt injures you. You get out, despite the pain, and approach the person responsible for your damage. You demand recompense. They refuse. You threaten to call the police. They choose to ignore you, and speed off. You have been injured, and your car has been damaged. Yet the law of the land does not afford you a remedy.

In Pakistan, you have to die in a car accident for your heirs to be able to recover compensation under the Fatal Accidents Act, 1855. Further, under the Pakistan Penal Code, 1860, Section 320 can be invoked, again, only when someone has died due to “rash and negligent driving”. The provision provides for diyat (compensation) and punishment that may extend to 10 years. Separately, Section 279 of the PPC criminalises “rash and negligent driving” that endangers human life, and imposes a liability of up to two years’ imprisonment, along with a possible fine of up to Rs3,000. A fine is collected by the state, whereas putting the negligent driver behind bars comes at a cost, paid, in part, out of the taxes you pay.

Meanwhile, the out-of-pocket expense is something you are forced to take on the chin. Unless, of course, you are someone — or are closely associated with someone — who can have the police harass the negligent driver into compensating you. Otherwise, if you are fortunate enough to not die in a car accident, the negligent driver is under no obligation imposed by law to make you ‘whole’.

Read: Disabled by Pakistan's criminally negligent doctors

Further imagine, that since you had gotten hurt in the accident, you make your way to the hospital. A doctor, who is in a hurry, sees you, and prescribes a highly potent painkiller, which is known to cause severe side effects. The medical profession, as a general matter, has developed a consensus against prescribing this painkiller. You, however, take the medicine as prescribed, and develop an ulcer. Your medical bills pile up, and you spend additional time in the hospital. Again, your chances of recovery against the doctor remain extremely slim.

Negligent doctors, just like negligent drivers, can get away with a lot in Pakistan.

The newly enacted Pakistan Medical Commission Act, 2020, just like its predecessor law, provides for a mechanism to challenge the licensure of a doctor, for, among other things, medical negligence, but not recovery against damages. In a recent Islamabad High Court case, ‘Shifa International Hospital et al vs Hajira Bibi et al, the court allowed the patient who sought to recover from a doctor for his alleged negligence, to invoke the Consumer Protection Act, 1995. But the court held that before the consumer court awards damages to the aggrieved patient, an opinion has to be sought from the regulator of the medical profession, which is now the Pakistan Medical Commission. Other court cases have expressly made an adverse finding of the PMC a prerequisite for instituting a criminal or even a civil suit against a negligent doctor. Moreover, again, it is only if a patient dies due to the “rash and negligent acts” of a doctor, for that doctor to be prosecuted under Section 318 of the Pakistan Penal Code.

Negligent doctors, just like negligent drivers, can get away with a lot in Pakistan, especially if the harm they cause falls short of death.

In common-law jurisdictions, that were not former colonies, the above-mentioned injuries, among others, are compensated by bringing a claim of negligence: a judge-made cause of action, with elements of duty, breach, causation and injury. Under negligence, a fault established through breach of duty or deviation from reasonable conduct suffices for imposing liability; intent to cause harm is not required, which otherwise is an essential element under criminal law.

The British, during their rule in the subcontinent, were primarily focused on criminalising conduct to keep the locals in check. They were here in the subcontinent for pecuniary reasons, and the system of governance they instituted remained subservient to that overarching goal. It remained expedient for them, for instance, to import and codify the principles of contract law. The commercial nature of their enterprise required that there be some amount of certainty in transactions conducted between individuals. Meanwhile, recognition of other private causes of action, such as negligence, did not seem important to them.

But it has been a while since the British left. And while we invariably teach our law students the law of torts, our legal system has yet to develop a mechanism for the recognition of claims brought under tort law.

In most instances, an individual injured by another private person is required to take her grievance to the courts of first instance. If the lower courts, however, do not even recognise a cause of action, then the grievance, naturally, remains un-redressed. On their own, the lower courts in Pakistan, never were, and still are not reasonably expected to begin recognising such grievances. Also, in even other common-law jurisdictions, the movement is towards codifying the remedies to be provided against tortious injuries. Here too, the legislature will have to step in.

The argument here is not that just because a cause of action is recognised in another society, that cause of action ought to be imported, but instead, that an injury that does not find recognition in law, has to be redressed through some means — street brawls, for instance, can be, and often are, an alternative.

And while our courts remain overburdened, crippled by inordinate delays, unable to address, at times, even the most blatant injustices, that still is an insufficient excuse for not providing compensatory mechanisms to those harmed. Injuries ought to be remedied through law, even if our legal system has yet to evolve into a system that actually delivers.

The writer is a litigator based in Islamabad.

awahid@umich.edu

Published in Dawn, August 26th, 2021

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