The Civil Liability Act was enacted this week following intense discussions and debates among parliamentarians in a joint sitting. Concerns about the law’s impact extend beyond Parliament. No law is perfect. The heated debates and public concerns possibly stem from a lack of understanding or misconceptions about the law and its role, rather than inherent flaws within the legislation.

In 2018, nine infants lost their lives, possibly caused by a lack of proper infection control measures. Young children lost their lives due to accidents involving Hume pipes, and a boy drowned in Bumthang due to improper securing of a tank or fence or notice of caution. A 34-year-old woman also succumbed to Covid-19, marking Bhutan’s fourth death from the virus. Compensations and accountability in these cases are yet to be known.

Last week, a bridge collapsed within a week after it was reconstructed, but we may never hear about accountability forgets compensation to the victims.

Interestingly, many lawmakers and certain sections of society seem to be having misconceptions about the role of civil liability law. They seem to think that any accident or injury, even being hit by archery, would result in significant compensation. This highlights a lack of understanding of the law, which operates on the principles of duty of care and breach of duty.

To succeed in a tort case, the plaintiff must demonstrate that the defendant had a duty of care and breached it. Attending sports events or carrying passengers inherently involves assumed risks, and accidental injuries in such situations do not automatically warrant lawsuits unless negligence, recklessness, or failure to ensure safety can be proven.  But incidents like in November 2022, where six monks died and many were injured when the driver, despite repeated warnings by monks, failed to drive slowly.

Further, there are several defences, including general defences, that allow an individual to free themselves from liability for wrongdoing committed. These defences encompass defenses such as consent, inevitable accident, acts of God, private defense, mistake, necessity, and statutory authority.

A significant challenge lies as a result of the enactment of the Civil Liability Act in determining how and where state agencies will be required to provide compensation to victims or those who have suffered legal injuries if an overwhelming number of lawsuits are filed against the state or smaller enterprises who do not have any insurance coverage against such lawsuits, unlike many other countries.

However, the implementation of civil liability law is crucial for Bhutan, where accountability is brushed under the carpet and state agencies often operate with impunity.

The Public Accounts Committee of Parliament presented in Parliament this week revealed that lack of accountability and a severe shortage of human resources in Bhutan’s public institutions and state agencies are major challenges now due to the resignation of a mass exodus of public servants from various sectors. This has led to a decline in service quality, increasing the potential for negligence in areas such as construction and healthcare, which require greater attention to the duty of care.

The implementation of this law would not only improve public service efficiency and quality but also protect vulnerable individuals and alleviate the burden and burnout faced by public servants due to increased responsibilities caused by staff shortages as the state will be forced to recruit and enhance more public servants to replace those resigned.

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.