The societies as they are found today have had to struggle through major cataclysmic events. It is an unquestionable fact that had it not been for the regulation rendered by a variety of laws, they could not have been able to stay in sync from time immemorial. Be it to maintain records, take important decisions, fill up positions of power, coexist amongst the versatility of the world, establish rules of discipline, prevent frictions among humans, restore peace, provide remedies or to think of ways of solving problems in order to move forward better, law has been the ultimately infallible aid.
Nepal, as a country guided by laws, also is a nation with a pretty groundbreaking, redefining and example-setting history. She has been capable of addressing her contemporary issues using appropriate laws as the medium and has not failed to make herself accustomed to various foreign and international laws in order to keep pace with the global way of life.
However, changes are the only constant. Laws are subject to change according to the changes in society. Are the legislations of Nepal lacking anywhere to render themselves more utility-oriented? Can there be any more areas to develop a body of law under? Does this aspect of lawmaking need thinking-about?
Origin and Concept of Torts
Our society is an interwoven complex of relationships, made mobile mainly by human actions. This arrangement often creates situations where one person is bound to produce a sort of hindrance to the person of another, the liability of which may be incurred in form of cash, kind or any other rightful intangible interest. The law of torts is all about transferring this liability from the victim to the originator. It can also be understood as making the original troublemaker pay for the troubles faced by the person to whom they pawned it off.
‘Tort’ comes from the Latin word ‘Tortum’ meaning a civil wrong. Its many variations existed in the city-states of Rome where the concept of civil wrongs first originated. In the course of spreading its roots to civil law countries, it came to be known as ‘delicts’ and in Sanskrit, as ‘Jimha’.
In the book, ‘Tort Law Principles’ by Bernadette Richards and Melissa De Zwart, Tort has been defined as “an act or omission by the defendant, constituting an infringement of a legally recognized interest of the plaintiff giving rise to a right to a legal remedy.”
The basic concept of tort is that any act intentional or unintentional, without being dangerous or harm-inflicting in itself, may cause injury to another person. Torts may take place either intentionally or by negligence. Sometimes when a tort action occurs, the liability is imposed looking at neither the intent nor the negligent factor. It constitutes a case of strict liability.
Basically, there are following four elements in an action that classify it as a tort:
- Duty: either to do something or to refrain from doing something
- Breach of duty: unfulfillment of the duty as mentioned in earlier point
- Causation: the breach referred to in earlier point must be the factor that created a liability for another person
- Injury: another person must have had to face some kind of injury to his personal rights
The law of torts operates so as to see that nobody has to face the burden of damage on oneself without being at fault themselves. Law of torts exists to provide remedies for uncalled harmful actions. The remedies in tortious activities are limited to only the claim of damages and not imprisonment or fine as in criminal activities.
Since law of torts are identified as civil wrongs, the civil section of law is relied upon for its remedies. But doing so might be cumbersome for a definite understanding of wrongs and its remedial measures.
Tort law is very much a part within Civil Law but Civil Law as a whole is assigned with the duties of settling family matters, custodial cases of children, registration of social events like birth, death, migration, marriage and divorce, property matters, breaches of contracts among others. Where tort law draws a distinction from generalised civil matters is that it exists to remedy a wrong as opposed to the attempts to ensure individual rights by both the parties in remaining civil cases.
Torts are different from crimes because crimes are considered acts done against the state, against the society. While under tortious acts, the tortfeasor injures another individual, the criminal in criminal activities poses a threat to the whole community. Under Criminal Law, the perpetrator is exposed to severe punishments in the form of imprisonment and fines but under the Tort Law, the delict is to remedy their wrong with compensation either in cash, kind or service enforced by the court’s order to make the tortfeasor do something, refrain from doing something or paying monetary damages.
Thus, separation of tort procedures from civil and criminal is only the logical step in order to let each of these branches of law take their own pace in doing away with redundant provisions and advancing better laws to address loopholes and to solve issues in their respective fields.
Tort Law is a well-developed body in English Law. Other common law jurisdictions derive their tort law principles from the Tort Law practice under the English Law. In the global scenario, tort law is developed not as a separate act altogether but its provisions are dispersed under various legislations passed by the Parliament.
America is one country where the ‘Federal Tort Claims Act 1946’ had been promulgated as a separate statute to regulate tort claims. This Act allows individuals to sue the state for the tortious activities committed by the individuals acting in the capacity of State Officials. And it allows one individual to sue another if the committed wrong was perpetrated by an individual in his personal capacity.
In Ghana, the tort law practices are interesting as a father is held liable for his son’s misconduct towards a woman if he does not get him married by the time he reaches puberty. It is also a tortious act when a woman or a child is forced to leave their family home. The delicts include slanders as well making the scope of tort law wider than that of the criminal law.
The Californian Law does not recognize innocent misconducts of minors as torts but does make their guardians or curators pay for the liability arising from their willful misconducts.
Other countries have included the actions of tort and their liability under their civil codes or other special Acts. Torts exist everywhere regardless of what they are called and how they are supervised. The only difference lies in the acts’ identification as a serious misbehaviour requiring public approach or minor inconveniences capable of being solved through personal initiatives.
Following are a few cases where it has been judged if or not an action constitutes tort:
- Limpus v. London General Omnibus, 1862: The employer could not be exempted from vicarious liability as the employee during the time when he caused a road accident breaching the written instructions was well within the duration of his employment.
- Mirvahedy v. Henley, 2003: The defendant was held to be liable for the injury caused by an animal domesticated by him even when he could prove that sufficient measures had been adopted to prevent mishaps.
- Smith v. Stone, 1657: It was decided that the defendant would not be liable for trespassing as he was brought into a premise not under his ownership without his consent i.e. forcefully.
- Henry v. Thompson, 1989: The police officials who beat and urinated on the arrested person were held to be individually liable for their misconducts and the police department was exempted from the liability which would have been the practice under vicarious liability otherwise.
Practice in Nepal
Nepal does not have a separate legislation for torts. It is still a blooming concept here and has been included within the Country Civil Code Act 2074 making it confined within a single Chapter 17 from Section 672 to Section 684. However, many provisions preceding and following this Chapter also contain the elements of Tort. Hence, the code so formulated reflects the inexperience of lawmaking in Nepal.
Section 683 converges the law of torts and the criminal law giving it authority to institute a criminal case if any tort action is found bearing the element of crime. Since Tort Law and Criminal Law are principally two different areas, this provision seems to be in violation of such a universally recognized principle of law.
Tort law holds the power to take care of the cases relating to negligent accidents, defamation, curtailment of rights, nuisance, vicarious civil liability, invasive use of property, etc. Thus, its proper distinction from other branches of law is to be doctrinally clarified and beneficially applied for the purposes of a peaceful social conduct.
The application of distinctive Tort Law principles will lessen the involvement of the entire state mechanism in a single case. It is bound to make our public life easier as people will start being legally aware about their rights and duties and start maturing as a social individual accordingly.
Awareness is the key to an educated and well-behaved population. Education about, practice of, extension in and advancement on the body of the law of torts will help us realise a responsible way of coexistence.
Caption: “…advancement on the body of the law of torts will help us realize a responsible way of coexistence…”