Meanwhile, this proposed legislation is to bring about accountability in the system and imbibe a sense of responsibility amongst relevant/responsible individuals, officials, agencies, business entities, as well as citizens
During the 27th Session of National Council yesterday, Deputy Chairperson of Legislative Committee, Ugyen Tshering, presented a report on the enactment of Civil Liability Act/ Torts.
In his presentation to the NC, the Deputy Chairperson stated that Bhutan has no explicit tort legislation and that the precedent system is still in its early stages. Although there are a few tort provision strewn about in a few legislations, they are largely concerned with the tortfeasor’s or defendant’s criminal prosecution and sentencing. There are no explicit provisions dealing with tort suit or with important foundational principles of tort law.
He said that many terrible occurrences of reckless fatalities and grave injuries to victims, as well as loss and damage to public property, have occurred over the years, notably in the recent past. There have been several reports of deaths and injuries stemming from substandard or sub-standard constructions work performed by contractors, as well as a failure on the part of appropriate government bodies and officials to conduct necessary inspections.
He said that employers’ inability to eliminate health and safety risks at work by establishing and maintaining a safe and risk-free working environment, as well as their inability to give accident compensation, is a common occurrence.
“In 2013, health facilities across the country recorded 29,303 work-related injuries and trauma in the construction sector. There have also been cases of employment of minors in Drayangs under hazardous and exploitative conditions which pose grave risk to the life and health of the minors and Drayang employees. The relevant authorities have failed to carry out timely inspection and monitor the workplaces. In law, such perilous or unreasonable conducts which causes injury to others are known as torts or civil wrongs,” he said.
Citing some of the examples of actionable torts that occurred in the recent past, he shared that in February 2012, a father and his eight-year-old daughter drowned inside the five acre sewerage treatment plant in Phuentsholing. Residents of Phuentsholing town blamed and asserted accountability on City Corporation officials for absence of safety measures in place.
He said that the Thromde officials, on the other hand, attributed the cause of the unfortunate incident to the general public, for ignoring the prohibition that restricted entry to the sewerage treatment plant. Although the sewerage treatment plant was fenced, Phuentsholing residents claimed the barbed fence did not serve its purpose as children and people could easily pass through it. Meanwhile, the RBP had not taken any action on the matter.
According to the deputy chairperson, in 2018, a Drayang owner in Trongsa had employed a minor to work as a dancer. The minor was allegedly raped by a government official. A six-year-old boy died and another four-year-old was critically injured when a Hume pipe rolled over and crushed them in Thimphu on 18 July 2019.
And on 27 April, 2021, the rusted streetlight pole collapsed on a woman’s head and injured her in Changjiji, Thimphu. It was reported that some of the street light poles did not have concrete foundation which is necessary to give proper support and stability to the poles.
He said that the residents expressed concerns regarding non-laying of concrete foundations for all poles by the National Housing Development Corporation Ltd (NHDCL) and in March this year, a 17-year-old girl was killed by falling metal rods at the Mega Dry Port in Phuentsholing. The victim was a minor. The contractor had not paid the required compensation.
Despite the fact that the harms/injuries suffered were substantial and irreparable, he stated that victims of unethical and reckless wrongdoing have yet to be compensated. Regardless of the fact that applicable provisions exist for the start of criminal procedures, no criminal charges have been brought to yet to hold responsible individuals/agencies/companies accountable for the wrongs committed, and the victims have not been compensated for their losses.
“There is lack of or weak implementation and enforcement of the laws by the relevant agencies such as RBP, OAG and the Courts. The inaction on the part of the law enforcement agencies not only perpetuate complacency amongst citizens and tortfeasors, but also have the tendency to impede people’s respect, trust and confidence in the legal system,” he said, adding that there is a real need for a resolution to mandate the relevant authorities to implement the laws in its true form, letter and spirit.
He added, “In addition to the criminal prosecution that may be initiated against those who have been negligent or failed in their duties, the victims also have the option to file a civil or tort suit to seek remedies for wrongful death, injury or loss of property. Since crime is different from a civil wrong, the criminal proceeding and the process for tort suit are different.”
He also added that while the criminal case is initiated by the State (OAG and RBP), a tort suit is initiated by the victim or his/her legal heirs.
“A successful tort suit results in a judgment of compensation (punitive, compensatory and exemplary damages) rather than a sentence of punishment as in the criminal case. The victim also has the option to join his/her claim for compensation with the criminal case rather than filing a separate tort suit. However, the standard of proof in a criminal case is higher because of which the criminal process becomes lengthy and long drawn. Therefore, for the victim, the better option is to file a separate tort suit to be expeditiously compensated for the harm suffered. However, in the absence of a specific tort law, victims have not been able to seek remedies for the injury and loss suffered,” he added.
He further added that the victims have not received the required support from the relevant authorities and from those who were responsible for causing the negligent and wrongful death or injury.
“In fact, in most of the aforementioned instances, the contractors, owners of business entities, drivers, motor vehicle owners or responsible officials of the agencies not even once checked on the victims’ condition after the incident, let alone provide immediate moral and monetary support for medical expenses or funeral rites. In all cases, it is His Majesty The Druk Gyalpo’s Kidu team who reach the victims to provide immediate Kidu in the form of cash and logistic support,” he added.
Meanwhile, over the deliberations, the House expressed diverse views in lieu of enactment of the new Bill owing to pre-existing laws that contains the provisions and concerns of the Torts/ Civil Liability Act.
However, the House will decide on the need of establishment of the said law at a later sitting.