Nepal’s Tort law lacking in its implementation

Tort is a civil wrong that is committed by one toward another for which unliquidated damages could be claimed. As it's a private wrong, the injured party herself/himself has to file a suit for compensation. If at any stage, the injured party wishes, s/he may agree to a compromise with the tortfeasor (defendant), and withdraw the suit filed by him. In case of crime, even though the immediate victim is an individual, the criminal wrong is considered to be a public wrong (wrong against the public at large) or wrong against the state. In case of tort, the ends of justice are met by awarding compensation to the injured party. The law of tort is important as it seeks to ensure the right of the persons. However, in Nepal, there is no stringent applicability of the tort law. We often hear people raising their concerns over medical negligence, adulteration of food, environmental pollution or use of loudspeakers that causes nuisance. But people remain reluctant to move the court to resolve these issues by penalizing the outlier.  People just turn a blind eye to these cases.

The question is why is there non-applicability of tort law in Nepal?

A costlier and time-consuming litigation process often prevents the aggrieved party from seeking compensation under tort law. The lack of pro bono lawyers in this law field could be another factor. More importantly, Nepalis have become habitual of claiming rights without fulfilling their duties. This is the major factor behind violation of people’s rights. However, the state has a duty to create a conducive atmosphere to protect the rights of persons and to implement the tort law. Tort under Civil Code The National Civil Code, 2017 hosts provisions regarding tort law. Section 672(1) provides that no person shall do or cause to do any act or omission, negligently or otherwise, to cause harm to other’s body, property or legally protected interest. This way, tort results from the breach of such duties which are not undertaken by the parties themselves but which are imposed by law. Winfield says the tortious liability arises from the breach of a duty primarily fixed by the law. In the words of Salmond, “Tort is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation.” The Code, 2017 prescribes that guardians would have to bear liability if their child/ward of below 14 or person with insanity commits civil wrong and causes harm to others. Section 675 provides that the employer would be liable for the act or omission of his employees. This arrangement is in recognition of the common law doctrine of “Respondeat Superior” which means master is responsible for the act of his servant. Section 676 provides that the owner of pet animals would be automatically liable for any injury or property damage the pet causes. The law places liability on the house owner for the loss or damage caused to any person as a result of the collapse of the house. These arrangements recognize the concept of vicarious liability which provides that the state, owner or employer would be held liable in respect of loss or damage either to property or to a person. The owner of the concerned property would be liable for the loss or damage caused to any person as a result of an explosion owing to a failure to adopt safety measures, emission of excessive gas, tree lying down, or discharge of any toxic substances (Section 678). Similarly, the owner of a dwelling house would have to bear liability for the loss or damage caused to anyone as a result of any kind of solid waste or goods thrown from his house (Section 679). These arrangements are exceptions of vicarious liability and in recognition of the position laid down by the House of Lords in Rylands v Fletcher (1868). In this case, it was held that the employer could not escape the liability for the damage caused to the plaintiff, when the escape of water from a reservoir which was constructed by the defendant from an independent contractor flooded the plaintiff’s coal mine. Section 680 prescribes that a person who commits trespass to another’s property shall be liable for any loss or damage resulting from his act of trespassing. Section 681 provides that each of such persons would, except as otherwise provided, be jointly and severally liable for any damage caused by that act, in proportion to the culpability of the tort committed by each person. Jurisprudence of tort  Section 682 explicitly and authoritatively envisages that the person who commits the tort shall have to pay compensation to the aggrieved party. The provision intends to ensure real and proximate damages to the aggrieved. This way, it recognizes the doctrine of Remoteness of Damages which suggests that test of reasonable foresight and test of directness should be applied at the time of inflicting liability. Still, the aggrieved party would have to file a lawsuit within six months from the date on which such an act of civil wrong was done against him [Section 684]. In Rigby v Hewit (1850) and Greenland v Chaplin (1850), the Courts of Exchequer, England, held that liability of the defendant is only for those consequences which could have been foreseen by a reasonable man placed in the circumstances of the wrongdoer. In Re Polemis and Furness, Withy and Co Ltd (1921) case, the Court of Appeal, an English court, held that a person is liable for all the direct consequences of his wrongful act. In general, the jurisprudence of tort rests on the foundation that “things speak for itself”, which is the basic essence of the doctrine of Res Ipsa Loqitor and where there is right, there is remedy, which is the basic spirit of the doctrine of ubi jus ibi remedium. Implementation matters In the words of jurist Hohfeld, rights come with duties. Salmond was of the view that one cannot claim his rights unless he fulfills his duties. Our actions should not cause harm, injury or annoyance to the other. For instance, if Mr A throws garbage on the street that causes nuisance to Mr B, then in such a case, Mr A would be liable to compensate Mr B for the loss caused to him. After all, “We, the people of Nepal” deserve to have a naturally clean environment and a rule of law state, for the Constitution and prevailing laws aim to achieve a welfare state. The tort law aims to protect the rights of people. It’s more in the nature of compensatory jurisprudence, as it seeks to guarantee compensation to the aggrieved party from the wrongdoer. In a rule of law state, the state agencies and people should not turn a deaf ear to the tort law. [email protected]