Civil Liability for Unsafe Foods under the CRPA and the ACL
Section 66(3) of the CRPA entitles a consumer who is affected by “an act” of a “trader” to claim compensation where the former's (consumer) pecuniarily assessable loss or damage is caused by the latter's (trader) “acts against consumer rights.” Section 2(16) of the CRPA defines the term “trader”29 encompassing manufactures, producers, processors, suppliers, wholesalers, as well as retailers. A trader, who would be liable to a consumer, as mentioned in s66(1) of the CRPA is a person who embraces a natural person, company, association, partnership firm, or any statutory or other organizations or their representatives under s2(17). It is thus clear that everyone from the manufacturer to retailer is subject to this civil liability. Further, s66(1) provides that nothing shall debar any aggrieved consumer, in appropriate cases, to file a civil suit seeking civil remedies against a person for being convicted of a criminal offence, or for initiation of any criminal proceedings, for an act against consumer rights. It means civil and criminal proceedings are not mutually exclusive, rather they are inclusive. However, a person can only be successfully sued for a civil remedy if it can be proved that: (i) the defendant acted against consumer rights, (ii) the plaintiff's loss or damage resulted from the proscribed acts of the defendant, and (iii) the loss or damage suffered is pecuniarily assessable.30 The plaintiff as an affected consumer bears the burden of proof of all these 3 elements. Section 2(20) of the CRPA contains a long list of the conduct to be treated as “acts against consumer rights.” The list includes, among other things, (i) knowingly selling or offering for sale any adulterated goods;31 (ii) selling or offering for sale any product that has admixture of any object that is dangerously harmful for human health, and the admixture of such object with food is prohibited by any Act or Rule in force;32 (iii) deceiving consumers in general by a false or untrue advertisement with the purpose of selling any products or services;33 (iv) manufacturing any counterfeit products (that is, goods purporting to be what they are not, whether by false declaration of contents or misuse of brand name);34 and (v) selling or offering for sale any date-expired goods.35 It means that food adulteration by almost any “act” committed in any manner is civilly prohibited.
Where the loss or damage is assessable in terms of money, the consumer can claim compensation up to, but not exceeding, 5 times the pecuniarily assessed loss or damage suffered.36 Apart from, or in addition to, the aforesaid compensation, s67 of the CRPA empowers the court to issue an order to the defendant to replace the defective goods with the appropriate goods, or to refund the consumer. Further, the court can also issue an order under s76(c) requiring the defendant to pay the costs of the suit.
The CRPA may apparently seem to be fine; however, it has several drawbacks and loopholes in regard to an affected consumer accessing compensation from food traders. These loopholes are discussed below. Before embarking on exploring flaws, it should be mentioned that the civil liability provisions for compensation are typically based on the negligence of the defendant. Unlike the civil liability regime under the CRPA, the law of negligence is well understood, and it is well known throughout the common law world that the origins of the modern negligence law can be traced back to the landmark English case of Donoghue v Stevenson.37 Thus, it is unnecessary to review the requirements of a successful negligence action in order to understand the civil liability provisions at hand. Below is the discussion of flaws found in the civil liability regime of the CRPA.
Subjective fault element for civil liability
As defined “acts against consumer rights” in s2(20)(b) of the CRPA, one can be held liable for “knowingly” selling or offering for sale any adulterated foods. The subjective requirement of “knowingly selling or offering for sale” can be regarded as an obstacle to a consumer's success in a legal action. In order to get a remedy, the victim as a plaintiff will have to bear the onus to prove the subjective knowledge of the defendant traders about, among other things, the defect in their foods. Generally, a consumer may find it difficult to prove. In this regard, Crumley comments that “[c]onsumers rarely have the knowledge to pinpoint what item made them sick or which food producer was responsible for that contamination, and they rarely have the resources to investigate similar cases of foodborne illness.”38
This “knowledge,” a high subjective requirement, typically applies to criminal liability where the State bears the onus of proof, whereas in civil liability, the onus is on the victim who is mostly weaker than the State in terms of resources to be employed against a financially affluent trader. A civil suit of a consumer will very likely fail, in many cases, due to the relative weaknesses of a consumer's ability to hire a capable lawyer, let alone a highly regarded attorney, to counter conceivably several experienced lawyers who could be employed by the defendant. There is no denying the fact that, unlike the practice in the inquisitorial system of trial, lawyers have a significant role to play in delivering justice in the adversary system, which is the prevailing system in Bangladesh.
The equivalent provision of the ACL does not require any such subjective fault element for the person whose liability is primary, this requirement, however, applies to the accessorial liability only, which is quite logical.39 Section 236(1) of the ACL is concerned with “actions for damages” and it provides that, if:
(a) a person (the claimant ) suffers loss or damage because of the conduct of another person; and (b) the conduct contravened a provision of Chapter 2 [general protection rules]40 or 3 [specific protection rules]41; the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention [bold added].’
Section 2 of the ACL defines the term “involved,” which means that:
‘[A] person is involved, in a contravention of a provision of this Schedule [Schedule 2 of the Competition and Consumer Act 2010 (Cth) containing the ACL] or in conduct that constitutes such a contravention, if the person: (a) has aided, abetted, counselled, or procured the contravention; or (b) has induced, whether by threats or promises or otherwise, the contravention; or (c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or (d) has conspired with others to effect the contravention [bold added].
The above sections clearly affirm that the liability of the primary violator of the ACL is contingent upon 3 requirements. These are: (i) a person has suffered loss or damage; (ii) the loss or damage was caused by the conduct of another person; and (iii) the conduct contravened a provision of general or specific protection of consumers. It also explicitly contains different requirements for secondary violators or accessories, while the CRPA is silent about secondary actors, which will be separately discussed below in this article. So, a significant disparity is apparent between the CRPA and the ACL in terms of the requirements of civil liability of primary actors, and the former completely lacks the provisions for the liability of secondary violators. These differences directly act against the interests of consumers by imposing heavy burden of proving the fault element of “knowledge” of primary actors and by implicitly absolving the secondary actors from their potential civil obligations.
Moreover, it must be a primary responsibility of a trader to know what they are producing or selling for human consumption, and so also for a cure of diseases when it comes to medicines that are included in the products under the CRPA as mentioned earlier. Those who have negligence in inquiring (knowing) about their products, they must not be allowed to be a trader of foods, medicines, and other essential products for humans in the first place, and if they become traders by any means, they must bear the consequence of their lack of the “knowledge” in question.42 Otherwise, it would be tantamount to rewarding the negligence of wrongdoers instead of castigating them for their wrongful conduct. Hence, the subjective fault element should be deleted from the civil liability provisions in the CRPA. However, the following substitution may be given adequate consideration.
Substitution of a due diligence defense for subjective knowledge
To make the civil liability regime more suitable to traders, they can be afforded a defense of due diligence in exchange for taking away the aforesaid “knowledge” requirement.43
The expression “due diligence” in law means close examination of an act investigating its lawfulness and associated risks, and general precautions would not suffice, rather it must be demonstrated that the “defendant's mind was concentrated upon the likely risks.”44 As held in Universal Telecasters (Qld) Ltd v Guthrie, the phrase “due diligence” refers to a minimum standard of behavior that is used to defend oneself against the violation of regulatory or supervisory provisions so as to ensure that the particular system was properly carried out.45 In its dictionary meaning, central to this defense, is that “the defendant took such reasonable and practicable measures to avoid committing the offence that a court could conclude the defendant was not negligent or otherwise at fault.”46
Consumers may make a claim of compensation if they can establish that the injuries they have suffered resulted from the food they ate.47 A trader may then be liable to compensate the victim for all or part of the loss or damage the victims have sustained. This compensation could be subject to the conditions that the plaintiff has successfully established that the injury in question was related to the defendant's conduct and that the defendant has failed to prove that he/she had exercised due diligence to avoid the defect in the food.48 This accepts both a due diligence defense to be established by the defendant, and causation or causal link to be proven by the plaintiff. This could be an acceptable trade-off between the burdens of 2 contentious parties. However, proving both the causation and defense entails to meet certain needs.
Establishing a due diligence defense in a suit requires the defendant to have considered weighing and balancing different relevant factors.49 These factors include: (1) the nature and gravity of the adverse effect of the defective product; (2) the foreseeability of the effect, including abnormal sensitivities of some consumers; (3) the alternative solutions available; (4) legislative or regulatory compliance; (5) industry standards; (6) the character of the neighborhood;50 (7) efforts made to address the problem in the product; (8) the promptness and duration of the response to the problem; (9) matters beyond the control of the defendant, including technological limitations; (10) the skill level expected of the defendant; (11) the complexities involved in addressing the problem; (12) preventative systems employed; (13) economic considerations in relation to the elimination of the problem; and (14) actions of the defendant's officials.51
The exercise of due diligence should be judged objectively, to a standard of reasonableness.52 Farnese argues in a civil compensation context that “the reasonableness standard will resemble the requirements of a successful due diligence defense in a regulatory prosecution.”53 It means the due diligence defense in both civil and criminal suits would be treated alike, and, of course, the defendant must bear the onus to establish the defense.
This proposed substitution of due diligence for “knowledge requirement” will ease the plaintiff's burden against the defendant's claim of subjective unawareness, which will, in effect, facilitate the success in the victim's claim.
In Australia, the ACL does not offer this defense to a defendant in a civil suit, although it is available to defend criminal liability as part of other defenses, rather than an independent defense by itself.54 Nonetheless, this defense can be taken into account at this initial stage of civil liability for defective products in Bangladesh, which has a long history of serious lack of enforcement of such liability provisions. Unlike the CRPA, which is an entirely new statute in the context of Bangladesh, the ACL is an improved and revised version of its predecessor called the Trade Practices Act 1974 (Cth). An absolute liability provision without any statutory defense may be unwelcoming at this stage to the business communities in Bangladesh, who have been unmindful of safety concerns and thereby involved in injuring consumers for decades without having faced any legal recourse. The discussion of causation follows.
Causal link between the acts of defendant and the injuries of plaintiff
Causation in civil or negligence law is a much confusing concept.55 This is so perhaps because “the doctrinal tools of causation—the “but for” and material contribution tests plus causal inferences—are deceptively simplistic for the challenging task of adjudging negligent behavior in a complex world.”56 Justice Sopinka of the Supreme Court of Canada in Snell v Farrell, a medical malpractice case, defined causation in tort as “an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former.”57
Causation in a food safety context remains to be a significant obstacle to a successful compensation claim in the present jurisprudence concerning litigation of consumer protection.58 This barrier became evident in several food safety cases. For example, in Jama (Litigation Guardian of) v McDonald's Restaurants of Canada Ltd,59 where the plaintiff alleged to have been sick after eating a Big Mac containing a severed rat head and claimed compensation for physical and psychological injuries. The plaintiff failed to satisfy the Ontario Superior Court that the rat head was in the burger at the time of sale.60 Therefore, Jama was unsuccessful following his failure to prove the causation element.61 This happened although it is not conceivable with common sense as to how the severed rat head got into the fresh burger if it had not got mixed at the time of making it by the defendant. Similarly, in Andersson v Loblaw Co. Ltd,62 the plaintiff reportedly fell sick after eating defendant's margarine with a toxic mold, but again failed to establish the causal link, which resulted in his eventual failure to get any remedy. In this case, the Ontario Court of Justice was not convinced that the mold was the cause of the plaintiff's illness, while the court held that the mold was a nontoxic variety, which could not cause the injuries claimed by the plaintiff who failed to prove that the margarine was unfit for consumption.63
As mentioned previously in “A Brief Statement of the Problem” section, s2(3) of the CRPA allows every consumer regardless of whether he or she bought the defective food to be a claimant or plaintiff seeking compensation, and, similarly, s2 of the ACL provides that an affected person who is entitled to seek compensation can be a buyer (consumer) or another person who got the product from a buyer.64
It is justified that a causal link is required in order for the victim to claim damages. However, the present provision in s66 (3) of the CRPA implicitly favors the defendant in that it does not clarify whether the food adulteration has to be just “a cause” or “the sole cause” of the harms sustained by the victim. It requires that the plaintiff was “injured by the act against consumer rights” of the defendant. Such an expression can be conveniently elucidated in a manner that it means the defendant's act has to be the sole cause. In this regard, s236(1)(a) of the ACL states “a person … suffers loss or damage because of the conduct of another person.” It should be noted that no judicial interpretation of this section has been found.
A consumer may have a preexisting medical condition and the adulterated food may further aggravate that condition causing a prolonged suffering and finally terminating the life of the victim. For example, the victim might have a preexisting indigestion problem to some extent, but the adulterated food may fuel an outburst of the problem causing serious illness and/or eventual death. In such a case, it would be difficult to prove that the food in question was the sole cause of the victim's illness or death. At the same time, it would be unfair to the victim if he/she is deprived of compensation on this single ground of not proving the so-called “sole cause.” Such a deprivation is possible under the current provisions. The civil remedy of compensation as outlined in Donoghue v Stevenson generally requires the defendant's wrongful conduct be only “a cause,” but by no means it should be “the sole cause.”65 Possibly, there may be other tortious and nontortious causes contributing to the loss or damage sustained by the claimant.66 Knutsen thus rightly asserts that “the only relevant relationships between causes and harms are those that involve the defendant's negligent behavior and the injured plaintiff before the court.”67
The standard doctrinal test for establishing the factual causation in a claim of compensation is the traditional common law “but for” test that has been affirmed and reaffirmed in recent cases by the Supreme Court of Canada.68 The United States Court of Appeals in Zuchowicz v United States held as a necessary element of the “but for test” that the defendant's conduct be a “substantial factor” contributing to the plaintiff's harm.69 However, these 2 tests, “but for test” and “substantial factor test,” are sometimes separated by saying that, “but for” is the first test, while the “substantial factor” is the 2nd test, where the latter is described as a cause of 2 or more causes.70 It is also stated that “an act or omission is the cause of an event, if it was a material element in bringing about an event.”71
Further, causation in tort cases is purely a question of fact about the defendant's conduct and plaintiff's injuries.72 To satisfy the causation requirement, the triers of the fact need to ask themselves: “but for” the defendant's wrongful conduct, “would the plaintiff have suffered some injury?”73 Abraham stresses that the “evidence of causation is always circumstantial” and “causation is a conclusion we reach when we expect a certain consequence to follow a certain antecedent and we have what we consider a tenable explanation for this relationship between an antecedent and a subsequent event.”74 The “but for test” does not require to have further inquiry about “what happened to make this mess” despite the fact that other causes might have contributed to the injury in question.75 Abraham plausibly argues that: “[w]hat might, or what would have happened, but did not happen, cannot be directly witnessed or perceived. Rather, findings of cause-in-fact require an inference from the circumstances to the conclusion that but-for the defendant's negligence the plaintiff would not have been harmed.”76
Likewise, English cases pronounce that the satisfaction of the causation requirement entails the defendant's conduct to be “an operating cause” at best, as this view is firmly affirmed by the judicial interpretation of causation in compensation cases.77 The causation is required generally for both civil remedies and criminal penalties. A criminal penalty typically warrants more stringent requirements than those of a civil remedy. Despite this, the doctrine of causation as applied in criminal law stipulates that the negligent conduct must be one of the causes and need not be the sole cause,78 and more than 1 person may be held liable for the offence.79 The accused's conduct is judged objectively to determine whether it was “a cause,”80 which needs to be an “operating and substantial” cause of the consequence,81 but need not be a major cause,82 however “it must be something more than de minimis.”83 Regarding failure to discharge a legal duty and resultant harms to others, Beale argues that:
Where the act is the failure merely of a legal duty, causation is established only when the doing of the act would have prevented the result; if the result would have happened just as it did whether the alleged actor had done his duty or not the failure to perform the duty was not a factor in the result, or, in other words, did not cause it.84
From the above discussion of causation by reference to judicial interpretations and academic observations of the requirements in both civil and criminal suits, it may be concluded that courts in developed common law jurisdictions are convinced that this crucial element in a compensation claim is satisfied if it is proved that the defendant's conduct was “an operating and a substantial cause.”85
Regarding evidential requirements, the causation indeed needs to be proved on the balance of probabilities in accordance with the civil standard of proof, and a defendant should be liable only for the loss or damage caused by his/her conduct.86 However, in the present context of Bangladesh, given the financial hardship of a vast majority of people and rampant food adulteration by unscrupulous traders, it is recommended that the legal burden of proof be reversed to the defendant to disprove the causation on the balance of probabilities, while the plaintiff will bear the evidential burden only. This view is supported by the U.K. House of Lords.87 An evidential burden requires the plaintiff to present evidence before the court, suggesting that there is a reasonable possibility that his/her injury was caused by the defendant's conduct. It may seem to be lenient toward victims, but otherwise it could be difficult to achieve the objective of consumer protection in Bangladesh.
Before proving the causation of plaintiffs’ harms, it needs to be clarified which breaches of defendants shall make them liable for the compensation sought. An ambiguity about such an essential breach may render a plaintiff's action futile altogether as discussed below.
Uncertainty about breaches of law due to ambiguous prohibited conduct
The prohibited conduct under s66 of the CRPA has to be an act against consumer “rights.” It is not clear whether this “right” has to be legal or a whether mere moral right will suffice. Moreover, these rights are not defined in this piece of legislation, nor does it adopt the definition of rights from any other law. Such an ambiguity may work ultimately against the legitimate interest of consumers instead of protecting their rights. The word “right” is an inherently complex concept having no universal meaning, and it is “multiply ambiguous.”88 In a legal context, “it is most frequently applied to property in its restricted sense, but it is often used to designate power, prerogative, and privilege,…” as pronounced by Justice Strong in People v Dikeman.89 The ambiguity as to the meaning of “right’’ is also found in the assertions of Justice Jackson in United States v Patrick.90 Regarding an enforceable right, Becker states that “[a]ll rights if they are genuine legal rights, have to be enforceable, that means the law can require people to respect them. If the people are required to respect them, then duties are being imposed….”91 An enforceable right generally refers to a specific legal interest, which needs to be well defined in law if its breaches are to attract a legal remedy.
Unlike the CRPA, the ACL does not explicitly require a breach of consumer rights. Instead, s236 of the ACL requires only the suffering of loss or damage by the claimant regardless of a violation of any right of any kind. It is therefore recommended that the CRPA deletes the requirement of a right being breached by the defendant. Alternatively, the rights that are protected should be precisely defined in law. The legislators could adhere to the neighbored doctrine espoused in the Donoghue v Stevenson, and the doctrine of implied warranty, forming part of contract law, might be followed in defining these rights. Otherwise, such a vague requirement would be detrimental to consumer protection.
Even defining consumer rights may not be sufficient to apprehend all potential violators. This is so because the definition of the prohibited conduct itself remains incomplete, which is shown as follows.
Ignorance of omissions
Civil suits are generally based on negligence, which includes both acts and omissions in law. But the prohibited conduct under the CRPA does not embrace “omissions,” even though an omission too can cause harm to consumers. For example, if a trader does not include warning of any potential risks associated with the product, then it would be an omission from product disclosures. So would be the case, if a trader intentionally and purposely hides certain ingredients from the product disclosure on the packet or otherwise, which may have a long-term harmful effect, and consumers would be unable to realize, let alone prove, the real cause of their harms. Further, this omission may have a short-term effect as well. For example, a consumer may be allergic to a particular food or medicine ingredient that is kept undisclosed by the trader, or a customer may suffer from a psychological shock or emotional disorder after unknowingly eating certain meats that are strictly prohibited in his/her religion. Such an omission may reasonably cause harm to consumers, and it is very likely to happen frequently in Bangladesh where the foods sold, especially by numerous street vendors, are mostly uncovered and their ingredients remain undisclosed. Nevertheless, this conduct may not breach the civil liability provisions of the CRPA as they are currently worded. Further, it may not be always possible for a consumer to identify the manufacturer or producer owing to a lack of sufficient information attached to the product, particularly to food items. This is because, generally, in countries other than the developed ones, the identity of manufacturer or producer is not always disclosed, especially on foodstuffs.92 If the identity of manufacturer or producer is not available, a consumer will have little choice but to sue the retailer who may not be able to adequately compensate the injured consumer. The retailer, on the other hand, may not always find out the errant manufacturer or producer of the defective product. Such a situation is likely to leave the victim uncompensated and keeping the wrongdoer unrestrained.
Further, a retailer may escape the liability by claiming his/her unawareness of the defect in adulterated foods, because they typically do not ask their traders about the safety of the foods they buy for consumers. This applies to many other consumer products as well. This is certainly an omission, especially when there is a great likelihood that the supplied goods could be unsafe. For example, almost all fruits are tainted with harmful chemicals in Bangladesh. Nevertheless, the retailers could be found “innocent,” because the law does not require them to ask their suppliers about food safety, whereas their knowledge of the defect is essential for successful litigation under the current provisions. Likewise, suppliers and wholesalers who do not ask their manufacturers about safety of their foods may also avoid their liability by taking advantage of such a provision that ignores “omissions.” This is extremely important particularly because these liability provisions apply not only to human and animal foods, but medicines as well.93
Differently from the CRPA, s236 of the ACL uses the term “conduct” instead of “acts.” The word “conduct” in law usually includes both an act and an omission to perform an act.94
A positive duty to personally and reasonably inquire about food safety in a standard form of product disclosure should be imposed on each of the traders to ask their immediate suppliers about the purity of foods, particularly where adequate safety information is not attached to the item as a usual practice. Making this inquiry should be an integral part of the defense of due diligence as advocated earlier, and it needs to be made obligatory at every level of the supply chain of foods from farm to fork. The adequacy of such an inquiry should be judged objectively, and a failure to conduct it reasonably should attract liability for consumer injuries where other requirements of contravention of a civil prohibition are satisfied.
Although a violation of a consumer right can successfully be established, the maximum amount of compensation permitted presently could be inadequate in some instances as argued below.
Prescription of the maximum threshold of compensation
The provisions of the CRPA concerning civil liability do not define the term “loss or damage,” nor does it lay down any formula for determining the minimum amount of compensation. Instead, the judge of a competent trial court has been given absolute powers to determine the minimum compensation, whereas the maximum has been prescribed in s67 of the CRPA as being 5 times the pecuniarily assessed proven loss or damage of the plaintiff.
Conversely, the ACL does not set forth any maximum threshold amount of compensation to be paid to an injured person. Therefore, the courts in Australia have full discretion to determine the maximum amount. Regarding a compensation order for an affected person, s237(2) of the ACL enunciates that “[t]he order must be an order that the court considers will: (a) compensate the injured person, … in whole or in part for the loss or damage; or (b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the injured person .…” In addition, the court may make all or any of the orders set out in s243 of the ACL, which includes, among others things, an order to refund, or to replace the product.95 Logically, an adequate compensation cannot be prescribed beforehand, and it has to be determined on a case-by-case basis. An affected consumer may lose many things due to the illness caused by the unsafe foods or other defective products of the defendant. Their losses may include: the price of the defective products, the costs paid, or to be paid, for medical and/or psychological treatments, the resultant loss of employment and/or income generating capacity, the sufferings of family members for the loss or injuries of their breadwinner, the suffering of the injured person from insomnia, anxiety, tension, depression, embarrassment, emotional distress, the damage of self-esteem, the loss of amenities of life, the loss of expectation of life, disfigurement, and so on.96
The above-mentioned highest limit of compensation under the CRPA may not always cover all these losses and damages. A court needs to have the opportunity to provide the amount of compensation that could adequately and equitably compensate all the possible sufferings of the victim, but the statutory prescription of the maximum threshold amount does limit the judge's powers in favor of wrongdoers, which could have been otherwise exercised in ensuring better protection of affected consumers. Arguably, once an injured consumer receives what can be described as an adequate compensation, traders are likely to be more vigilant in regard to ensuring product safety.
On the other hand, the unrestricted discretion to determine the lowest amount of compensation by the lower court judges97 in Bangladesh is undesirable on 2 counts: first, they are not adequately experienced in dealing with compensation cases as civil injuries, in general, are seldom remedied in the country; and second, a lack of impeccable honesty of some judges and other court officials. There are numerous allegations of corruption against the judges, especially of lower and intermediate courts.98 However, it is unlikely for consumers to unfairly influence the judge, because traders as business organizations are generally more influential than individuals in terms of both financial ability and political sympathy. Therefore, such an unencumbered power of determining the minimum amount of compensation itself may not be realistic and welcoming to the myriad of existing and potential victims. Rather, consumers may be better protected if the minimum is prescribed by law, instead of the maximum. Otherwise, it would hardly create any deterrence for wrongdoers and generate any stimulus for sufferers to initiate legal action. This is because, even if the judge becomes dishonestly biased toward the affluent defendant, the victim will get the prescribed minimum compensation where the requirements are met. The opportunity for dishonest practices by judges might perhaps be wider in the absence of any specific guidelines for assessing a minimum amount of compensation. Consequently, this judicial discretion of determining the minimum amount, and inversely limiting the application of judges’ good conscience and equity to determine the maximum amount are likely to benefit the unscrupulous traders. Therefore, amending this provision is important to cater for the specific needs of consumers in Bangladesh, and it is recommended that this minimum amount be equivalent to the present maximum threshold, being 5 times the estimated loss or damage suffered.
Furthermore, unlike the CRPA that counts only the loss or damage “actually suffered” by the plaintiff, and it has to be monetarily assessable and proven before the court,99 the ACL empowers the court to consider both the “actual” and “likely loss or damage” of the injured person.100 The latter is certainly better for consumer protection, and this can be inserted in the former in the interest of consumers. Hence, the requirement of an estimated “actual and likely loss or damage” should be substituted for the existing “pecuniarily assessable proven loss or damage,” because the actual loss may not always be pecuniarily ascertainable, for example, it would be difficult to prove the actual loss of mental or psychological shock in terms of money.
The amount of adequate compensation in Bangladesh is not only constrained by the prescribed maximum limit, it is also restricted by the number of potential defendants as evident in the following section.
Accessorial, joint, and several liability
Unlike the ACL, the provisions of the CRPA are silent about the liability of accessories. Section 236(1) of the ACL stipulates that “the claimant may recover the amount of the loss or damage by action against that other person [the primary actor in the contravention], or against any person involved in the contravention [Italic added].”
As explained in s2(1) of the ACL, a person is involved in the contravention if the person: (a) has aided, abetted, counseled, or procured the contravention; or (b) has induced, whether by threats or promises or otherwise, the contravention; or (c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or (d) has conspired with others to effect the contravention. These are all accessories to the primary violator(s).
Successful litigation in Australia is perhaps further fostered by the provision of “joint and several” liability. Section 144 of the ACL regarding the civil liability of “manufacturers” provides that if 2 or more persons are liable under Division 1, which deals with manufacturers’ liability, for the same loss or damage, they are jointly and severally liable. Section 7 of the ACL contains a very extensive definition of “manufacturers” encompassing almost everyone involved in producing, importing, and selling goods. Therefore, the extent of civil liability is very wide under the ACL. On the contrary, the scope of liability under the CRPA is narrow compared to its Australian counterpart in that apparently, it (CRPA) does not impose liability on accessories (“involved” persons as mentioned in the ACL) and that the liability is not joint or several.
A wider scope of liability is appreciable from the perspective of consumer protection for 2 reasons: first, it would help create both general and specific deterrence for the persons involved in the food industry; second, it would facilitate obtaining compensation because an injured person would be able to recover the remedy from any or all of the persons involved in the contravention. If one's funds are insufficient, another will have to shoulder the liability to adequately compensate the injured persons.
Justice should be delivered to both parties to a suit. Hence, the plaintiff will have to bear the part of the detriments caused by his/her own negligence. This can be ensured by equitably sharing the pains of disputed injuries by both the defendant as well as the plaintiff. Also, the defendant could be absolved from liability based on certain evidence. The following stipulates the way of doing this.
Contributory negligence and other defenses to be incorporated
Contributory negligence is basically a common law defense to allegations against negligent conduct. It is prevalent in all major common law jurisdictions. For example, incorporating this defense, the Civil Liability Act 2002 of New South Wales, the largest jurisdiction in Australia, provides that “[t]he principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.”101 It also provides that the standard of care required of the plaintiff to be judged objectively putting a reasonable person in the position of the plaintiff and taking into account of what he/she (the plaintiff) knew, or ought to have known, at the time of getting harmed by the conduct/product of the defendant.102 An identical provision is contained in state legislation in Victoria, the 2nd largest jurisdiction in Australia.103 However, Bangladesh does not have any statute equivalent to the Australian state legislation cited above containing the principle of contributory negligence, nor does the CRPA have any comparable provision. The absence of this provision from the CRPA may be attributed to a serious dearth of legal actions for negligence under statutory law, and, on the other hand, litigation under the common law of negligence is, in practice, nonexistent in Bangladesh. Nonetheless, to be fair to all parties to a claim of compensation, this defense should be incorporated in the CRPA, because any law generally requires everyone to be reasonable and behave reasonably with oneself and others. Therefore, the victim should take the responsibility for the part of his/her own negligence, if there is any, contributing to the total amount of loss or damage he/she sustains.
Apart from the contributory negligence under state legislation, the ACL has its own defenses relevant to defective products which include: (i) the denial of the alleged safety defect, (ii) the defect existed only because of compliance with the mandatory standard for the product, (iii) the state of the art (scientific or technical knowledge) at the time of supply of the goods was not able to discover the disputed safety defect, and (iv) if the defective products were comprised in other goods, the safety defect is attributable to the instructions or warnings given by the manufacturer of the other goods.104 All these defenses are quite reasonable, and therefore, should be made available to the defendants under the CRPA.
A legal action may be liable to be set aside at any stage of litigation frustrating the affected persons due to ambiguities in empowering courts to deal with certain matters under the CRPA as depicted below.
Apparent conflict between civil and criminal liability provisions
A small hole may sometimes turn into a big obstacle to an enforcement action. Section 64 of the CRPA imposes a bar on a 2nd trial and provides that “any person, convicted or acquitted in a trial according to the provisions of this Act for an offence punishable under this Act, shall not be tried again for the same offence under any other law.” The articulation of this crucial provision is not clear enough to positively infer that only the 2nd “criminal case” has been prohibited. Therefore, a question may emerge from a careful reading of s66(1) that empowers a civil court to take up a compensation claim made by a victim against a person who might have been already convicted by, or against whom criminal proceedings might have been initiated at, a criminal court. The focal point is that the empowering provision of s66(1) does not mention anything about the fate of a civil suit if the person had been previously “acquitted” by the criminal court. These provisions become further complex and ambiguous in that a civil suit is permitted only “where appropriate” even in the case where the person has a conviction, or pending prosecution, for the same offence.
Now 3 questions may be initially raised. These are: (i) is a civil suit for compensation maintainable if the person has been previously acquitted from the criminal charge? (ii) what is the meaning of “where appropriate”? and (iii) who will determine this “appropriateness” and based on what?
Criminal conviction generally requires a higher standard of proof (beyond any reasonable doubt) compared to the civil standard (on the balance of probabilities) to punish an accused. Hence, a person could be acquitted from a criminal charge under the CRPA based on the prosecution's failure to prove the charge beyond reasonable doubt; however, it does not necessarily mean that the allegation cannot be proved on the balance of probabilities. When the prohibition is put in place, in an emphatic term, that the person cannot be further tried for the same offence once he/she has been acquitted from the charge (s64), and the empowerment of the civil court is silent about such a situation (s66), the defendant may selfishly claim to rely on the prohibition. Based on prohibition and silence, the defendant may argue that s64 prevents further trial for a victim's compensation, and that s66 does not empower a civil court to deal with such litigation for compensation. These arguments may eventually succeed. If that happens, it would be practically unrealistic and theoretically untenable from the viewpoint of delivering justice to the victim, which is the foremost objective of both the law and judicial institutions in any jurisdiction. It should be mentioned that the prohibition under s64 is arguably arbitrary, because defective goods, especially foods, on many occasions cause death, which is tantamount to manslaughter, the punishment of which is much higher than that of selling adulterated foods or defective products.105 This sort of a bar on the 2nd trial is unusual even in Bangladesh. However, an analysis of the criminal liability provisions falls beyond the scope of this endeavor.
Notably, such a prohibition and an ambiguous empowerment of civil courts are absent in the ACL.
As regards the condition “where appropriate,” it would be undesirable if it is left to the discretion of the trial court. This is so because what could be the merits of such unfettered discretion? It may provide further opportunity to the lower court judges to deal with the matter underhandedly having a scant regard for a consumer's injuries. The right to sue for compensation should be straightforward, which could negatively incentivize the wrongdoers and, at the same time, positively stimulate the affected persons to enforce their entitlements.
A further question may be raised whether the aforesaid “bar” on a 2nd trial, despite the defendant's acquittal, and the silence of the provisions of civil court empowerment about such a restriction, are mutually linked to each other. Yet, another question may be put up as to whether any interplay exists between this “prohibition” and the “appropriateness” (civil suit can be lodged only “where appropriate) in question. If such interlinks factually exist, their purposes need to be immediately clarified in order to facilitate the enforcement of victims” rights and to strengthen deterrence to potential law breakers. These questions beg to be answered before wrongfully depriving any injured person of legal remedies by an inexperienced civil court in the country.
The trouble of affected consumers may not end, even when winning the case at the court of first instance. The provisions regarding appeals may encumber their final victory owing mainly to their financial ability as it is demonstrated in the following, which presents an examination of appeal provisions that are likely to inhibit the ultimate success of injured persons.
Appeals directly to the Supreme Court
Section 68 of the CRPA provides for an appeal from the trial court to only the HCD,106 while the competent trial court is the Court of Joint District Judge. This appears to be cumbersome, specifically for those victims who will lose the legal battle at the trial court. This provision avoids the usual rules of civil appeals, which allow appeals to normally the immediate higher court. In order to overcome this general provision of civil appeals, s68 explicitly overrides the prevailing civil law provisions of the country (the Code of Civil Procedure 1908 (CPC) and the Civil Courts Act 1887) concerning appeals. With respect to appeals from the Court of Joint District Judge (here the court of first instance), s21(1) of the Civil Courts Act 1887 as amended in 2001 provides that:
… an appeal from a decree or order of a Joint District Judge shall lie- (a) to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed 5 lac Taka [USD7143 approximately] and (b) to the High Court Div. in any other case.
The intention and ability to file an appeal by a losing consumer would be circumscribed by this provision, because the victim may be unable to pay for the cost of his/her own legal representation at the HCD, which is located only in the capital city, Dhaka. Dhaka is far away from the rural districts, and the fees of hiring attorneys of this higher Court are obviously higher than those of their colleagues at a district level court.
Moreover, it sounds apparently illogical to go that far, especially when the amount of claim made by the victim is relatively small and falls within the pecuniary appellate jurisdiction of the Court of District Judge, which is currently Tk 500000 (US$7142 approximately). In addition, it will badly add to the current huge logjam in civil cases for the Supreme Court arresting the delivery of justice for even much longer than expected. As of April 2013, there were more than 300000 cases pending with the HCD alone for 90 judges, while the Appellate Div. had about 17000 cases for10 judges.107 These concerns might have chilling effects on the victims who could have otherwise lodged their appeals had the appellate court been the Court of District Judge. This will thus ultimately benefit the wrongdoers against the legitimate interests of consumers.
Notably, unlike civil appeals, criminal appeals under the CRPA shall go to the Court of Sessions Judge of the local jurisdiction (both the Court of District Judge and the Court of Sessions Judge are presided over by the same person),108 while a 1st class magistrate of the local jurisdiction has been entitled to try criminal cases as the court of first instance.109 So, it is unclear why criminal appeals are allowed at the district level, while civil appeals must go to the Supreme Court. In the absence of convincing reasons being provided, one could appropriately call it discriminatory provision at its best, and anticonsumer prescription at its worst. It is to be borne in mind that victims may be willing to lodge an appeal after being denied justice by the trial court, if it occurs; but the process would be cost-prohibitive for many of them. The provisions of civil appeal are unjustified in that the State is the complainant in a criminal case, as opposed to a civil litigation where a poor individual can be a plaintiff after becoming a victim of adulterated foods or other defective products, on many occasions given the absence of a representative association and regulatory powers of suing errant businesses on behalf of consumers.
Therefore, it is submitted that s68 concerning civil appeals be amended and the Court of District Judge be empowered to hear such appeals up to its pecuniary appellate jurisdiction.110 Appeals involving more than the maximum pecuniary appellate jurisdiction of the Court of District Judge shall lie with the HCD directly from the trial court. It can be justified referring to the amount of money involved.
However, if either party is aggrieved by the verdict of the Court of District Judge, based on adequate evidence that there has been an error of law occasioning miscarriage of justice, the aggrieved party may apply for review to the same court under s114 of the CPC that empowers any civil court to review its own decisions.111
Alternatively, the Court itself may refer the case for the opinion of the HCD under s113 of the CPC, which is called reference of the HCD. Section 113 provides that “[s]ubject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the HCD, and the HCD may make such order thereon as it thinks fit.”
This would protect both the victims and errant businesses from additional troubles of attending the highest Court for a dispute involving a certain amount of money without incurring further cost of contesting each other.
It is worth mentioning that the 2013 legislation (FSA) has brought about a change in the appeal provisions. Section 77 of the FSA provides that all civil appeals shall go to the Court of District Judge. This provision is not realistic either. This is so because an amount of adequate compensation may exceed the pecuniary appellate jurisdiction of the Court of District Judge, though this legislation again limits the maximum amount up to 5 times the actual loss or damage of the victim under s76(3). Like the appeal provisions of the CRPA, it also goes against the general rules of appeal, but in a different way. It is generally and prudently accepted that lower courts112 should have a cap on their pecuniary appellate jurisdictions. When a judicial decree or order involves an amount of money above a certain figure, it is regarded as significantly more onerous than any lower amount for the judgment debtors; therefore, it should be finally decided by the higher court to ensure fairness for both parties. We adhere to the rationale behind the rule of a prescribed maximum threshold amount, and therefore we are not convinced to endorse this wholesale change made by the FSA. Instead, we still stand by our recommendations concerning appeals submitted above.
It should be mentioned that ACL does not provide for any special rule of appeal overriding the regular provisions. However, our recommendations are premised on the reality of courts and victims of defective consumer products in Bangladesh.
All of the above issues raised regarding the current provisions of appeal will very likely deter the victims from seeking legal remedies, rather than preventing malefactors from committing wrongs. This probable impact must be undesirable and will potentially contribute to a further increase of production of defective consumer goods.113 Private litigation should be fostered alongside the regulatory actions in order to minimize and gradually eliminate the ongoing problem with consumer goods including foods. This claim is reinforced by Johnston who asserts that litigation by victim of contaminated food would compel the wrongdoers “to examine harmful practices that might otherwise receive inadequate attention.”114 Liu emphasizes that private litigation with respect to food safety would force “producers to internalize the costs of doing business and take precautions long before problems arise”.115 More importantly, the Supreme Court of the United States, in relation to the benefits of private litigation for compensation, reaffirmed a similar view in Zauderer v Office of Disciplinary Counsel.116
Therefore, having regard to the above arguments, the proposed amendment regarding civil appeals should be brought about in the best interest of justice.
However, private litigation is just an important way of strengthening enforcement of consumer rights, regulatory legal actions on behalf of the victims seem imperative in the context of Bangladesh, as explained below.
Empowering a regulator to sue on behalf of victims for their compensation
The concept of individual litigation for compensation, let alone a class action, is yet to find any appreciable ground in Bangladesh, perhaps mainly because of the prolonged “implied acceptance” of established dishonest practices of businesses for any reason whatsoever. So, it will take time to wake up the victims of such businesses to come forward unitedly against the wrongdoers. On the other hand, courts are inundated with unacceptable numbers of pending suits from the lowest to the highest court of the country's judiciary which is currently burdened with about 2.7 million pending cases at different levels.117 In the absence of class actions, the issue of multiplicity of suits is critical. Therefore, taking into account the passivity of victims in suing the wrongdoers, and the inadequacy of courts in effectively dealing with the excessive case logjam, the Directorate of National Consumer Rights Protection (DNCRP), headed by the Director General (DG), can be empowered to sue the wrongdoers for damages on behalf of consumers. Currently, the DG of the DNCRP as the administrator of the CRPA has enormous powers to take actions against the violators of the CRPA; however, it does not explicitly empower the DG to lodge a suit for damages representing consumers who have suffered loss or damage caused by unsafe goods.118
Conversely, the Australian Competition & Consumer Commission (ACCC), as administrator of the ACL, is able to sue the transgressors of consumer rights provisions for damages on behalf of 1 or more consumers as a representative action based on written application of those victims.119 For example, ACCC v Chats House Investments120 and ACCC v Golden Sphere International Inc and Ors121 are 2 representative suits lodged by the ACCC.122
Indeed, individual victims are also entitled to bring private action123 in Australia as consumers can do in Bangladesh.
Empowering the regulator to initiate representative actions in Bangladesh will effectively help achieve the overarching objective of consumer protection as well as reduce the avoidable judicial burden of litigation for compensation. When both the victims and regulator are entitled to sue, it is reasonably believed that the lawbreakers will most likely be hooked up by either of the 2, and thereby, more wrongs will be remedied than it would have been the case if only the victims remained entitled to judicially challenge the “acts against consumer rights.”
Finally, self-help is the best help. We also believe in the proverb that prevention is better than the cure. This prevention can be best achieved through educating all stakeholders of unsafe foods as advocated in the following.
Education for the prevention of harms
Law in the book cannot go far enough to deliver its objectives. The subjects of the law should be well informed of their rights and obligations. In a context of food products, Balzano asserts that “safety depends on certain basic infrastructure and the existence of sufficient education and expertise among the different actors in the system.”124 It needs a combined effort of the government, businesses, and consumers who are the stakeholders. Maintaining this view, Premier Wen Jiabao, referring to the Chinese food safety problem, which is comparable with that in Bangladesh, points out fittingly that “food safety problems are “significant” and the government and people must “work tirelessly and painstakingly” to resolve them.”125
A comprehensive recent research suggests that for an effective safety regulation, the regulatory agencies need service officers equipped with necessary expertise or experience in food safety; food handlers do need to receive proper training, and the public in general as consumers need to have adequate information on the prevention of food impurity.126 It would be the responsibility of the concerned businesses to impart adequate training to their employees, and the government should appoint the most competent persons to the regulatory bodies that should shoulder, among other things, the responsibility for educating people and traders. The government through its regulatory bodies should take the leading role by arranging educational programs to be broadcast through public media, especially televisions that are now available almost in every household in Bangladesh. Both electronic and print media can play a pivotal role, on their own as part of their social responsibilities, in raising the consciousness of consumers and the cautiousness of wrongdoers. All these educational programs, when relevant to foods, should be designed to educate people on food safety and related rights and obligations of all stakeholders.