Every public service is subject to accountability and utility poles is no exception. The recent incident of an electric pole where a woman was injured by a falling electric pole demands accountability and compensation to the victim. Kuensel report suggests a strong indication that most poles did not have concrete foundation and poles were hardly inspected and maintained” posing risks to the public. There are many factors that can “cause a utility pole to snap- natural rot and decay over time, damage due to extreme weather, weakening by termites, overloading, illegal attachments, and more.” Therefore, the utility poles should be “inspected periodically” and maintained to ensure that such public utility poles are safe. In many countries, even in accidents where a driver crashes into a utility pole, the companies and municipalities were held responsible for failure of their duty. For example, a driver of the station wagon in America crashed on a utility pole, a passenger was injured, the company had to pay 5.5 million dollars to the family to settle the case because the pole was located on the curb of the highway.
While there are no specific laws on such incidents in Bhutan, no public agency is free from accountability. In the recent incident, there is strong evidence of negligence on the part of responsible agencies (Thromde or NHDCL) and the victim can file a civil suit for negligently causing a personal injury and seek appropriate damages including punitive damages to set an example to other public agencies to be responsible and accountable in future. For such a suit, the victim must first prove that there was a duty to the public agencies “to design, install, operate and maintain such facilities in a reasonably safe condition.” Second, there was a breach where the relevant agency failed “to inspect frequently and diagnose any faults and rectify.” Third, the accident was caused due to a breach of duty and finally due to the incident, the victim suffers from physical and emotional trauma, economic loss, and other opportunities including trauma and problems caused to her family.
Alternatively, the victim can also file a criminal case under Section 57 of the Penal Code of Bhutan (PCB). Under this provision, if the relevant agency was aware that the poles posed “unjustifiable risk” constituting “a deviation from the standard of care of a reasonable person in the defendant’s situation” then it constitutes an offence of negligently causing injury and seek various compensations under Section 36, 37, 38 and 39 of the PCB.
We must remember that, when the law allows our municipalities and other third parties authorized by municipalities the right to erect utility poles exempting them from nuisance, it does not negate their liabilities in case of “injuries sustained in consequence of their failure to use reasonable care to keep our streets in a reasonably safe condition for public travel.” The agencies have the primary “duty to keep the post in a safe condition” and not function with impunity in case of negligently causing injury to the public. This is not the first time and will not be final. Therefore, it may be a time that the public uses legal means to fix the accountability to minimize such negligence. Our justice system must set an example to make our public agencies responsible and accountable to ensure safety of the public.
Disclaimer: The views expressed in this article are author’s own.