Wasif Hassan is a rising law senior at Lahore University of Management Sciences (LUMS).
In May this year, a three-year-old boy was injured and lost his foot after it got stuck in the escalator. According to the mother of the injured child, this incident happened when they were going from the second floor to the third floor of Ocean Mall. She further added that they kept calling the administration, but no one came to help, and even the buttons of the escalator were non-operational, and there were no medical arrangements.
As a result of the incident, a protest was staged outside the Mall near Teen Talwar in the upscale Clifton neighborhood. The family demanded immediate registration of an FIR. However, it is alleged that the administration of Ocean Mall had used a threatening tone with the parents and lodged false cases against them. The available facts of the case are simply that the boy lost his foot because it was stuck in the escalator due to its faulty operations.
Based on these facts, we now look at the type of liability Ocean Mall can face and the relief the court of law can provide to the boy and his family for the incident. In the case that it is pursued under criminal negligence, the prosecution will take up the case against Ocean Mall. In contrast, if civil negligence under torts is pursued, the boy and his family will be awarded damages if they win the case.
The term civil negligence is when a person fails to exercise ordinary care, sometimes referred to as due diligence. The term ‘criminal negligence’ or ‘criminally negligent’ refers to a person who fails to be aware of a substantial and unjustifiable risk; “the risk must be of such nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”
Criminal negligence is more than a mistake or excusable incident, and it should not be mere carelessness, inattention, or a mistake in judgment. Moreover, the knowledge of danger must be known. In contrast, civil negligence is “where a person omits to take ordinary care which is also known as due diligence.” Thus, to prove criminal negligence in the case of the Ocean Mall incident, it has to be proved that the Mall knew about the dangers of the faulty operations of the escalator.
However, the facts of the case have not been investigated yet, and Ocean Mall and the local authorities have ordered a probe into the incident. If Ocean Mall knew about the faulty operation of the escalator and continued to operate it under these circumstances, it would be criminal negligence. If the Mall did not know about the escalator’s faulty operation but failed to exercise due diligence in making sure that the escalator was in a safe condition, then the case would fall under civil law.
The case can be pursued by the claimant (injured boy or his family) under both areas of law, depending on the actual circumstances of the case. If the case is pursued under civil law, then the case would fall under the ambit of the law of torts. Unfortunately, we do not have much case law available on the law of torts in Pakistan.
This area of law has been neglected and has not been developed through case law or statutes, so recourse has to be made to case law from other jurisdictions.
The Court of Appeals of New York decided on one such case with similar facts. In the case of Ebanks v. New York City Transit Authority, 70 N.Y.2d 621, the respondent commuter filed a suit against the appellant transit authority after he was injured when his foot got stuck in the appellant’s escalator.
The lower appellate court affirmed the lower trial court’s decision that granted judgment in favor of the respondent. However, the decision was modified, and the case was remanded for a new trial on the issue of damages. The lower trial court’s decision in favor of the respondent commuter was affirmed.
A similar case in Pakistan is of accident due to the faulty operation of a lift. In Mazhar Ali vs Park Avenue Owners/Occupants Welfare Association 2020 MLD 257, the plaintiff’s son died in a lift accident “due to technical fault in the lift, which was not properly maintained by defendants”. When the lift malfunctioned and moved down, the deceased was stuck in the lift while it moved upwards.
After hearing the cries, the management turned off the lift, and the deceased was taken to the hospital, but he had met his end. The deceased was employed at a company having an office in that building.
The court highlighted previous case law for the definition of maxim res ipsa loquitor (a court can infer negligence from the very nature of an accident in the absence of direct evidence on how any defendant behaved), where it was “held that if an accident/incident resulting in the death of a person itself is not disputed by the defendants, then the onus to prove that a person died not because of negligence or wrongful act of the defendant is on the latter (the defendants) and not on the plaintiffs, in order to succeed in a claim for damages.”
The court further stated that if the defense was of contributory negligence (negligence of the plaintiff was the cause of harm), then the defendant had to provide evidence that the machine was in perfect order and there was no defect in it. As the plaintiff’s testimony was not dislodged, the defendants were held liable for the plaintiff’s death. The court held that in such types of accidents, the employer is vicariously liable for the tortious liability of his/its employees.
Possible Legal Recourse
Although the Mazhar Ali case involved a lift and not an escalator, it provides insight into the applicability of tortious liability in the Ocean Mall incident that involves an escalator. Regarding the maxim res ipsa loquitor, it follows that the case can fall under it if Ocean Mall does not dispute the facts, and it would be evidence of the Mall’s negligence.
If the facts are disputed, any violation of the statute regarding the requirements for installation of lifts will lead to negligence per se (violation of a statute is considered negligent behavior). As Pakistan does not have detailed legislation as to the minute requirements regarding the installation of escalators, unlike the US, negligence per se does not seemingly apply.
This case highlights the need for detailed statutes, violations of which will lead to cases being decided under negligence. Regardless of how the case proceeds, the right way to proceed is to establish tortious liability as it is a personal injury case. Winning the case will provide for damages to cover the medical costs. A plethora of case law in the United States deals with situations where people were injured because of escalators.
The case laws from the US and UK can be applied to Pakistan to provide recourse to the legal situation. However, it is unsure how the case would proceed. As it is alleged that the Mall administration threatened the boy’s parents, and the latter had to stage a protest to find recourse, it follows that the applicability of the law of torts, in this case, would face certain hurdles.
Firstly, there is a general lack of awareness regarding tort law, and the caselaw shows that the litigation process is lengthy, discouraging the potential litigants from bringing actions under torts. Secondly, it is uncertain why, but the lack of sufficient case law also means that not many cases of negligence are brought before the courts.
The Ocean Mall incident is one instance where the courts have the opportunity to develop the jurisprudence of law of negligence under the law of torts. The development of the law of negligence through this case will cause owners of businesses to be careful with the standard of care of a reasonable person.
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