The tragic accident in Phuentsholing, which claimed the lives of a 32-year-old woman and her three-year-old daughter, has set in motion a legal process that may prove pivotal in protecting vulnerable groups and establishing accountability beyond individual employees. This case shines a spotlight on the often-overlooked realm of employer liability, particularly when the failure stems from systemic shortcomings within the organisation. By potentially holding the construction company accountable under the Civil Liability Act, this case could mark a watershed moment in setting the Civil Liability Act into motion, filling a crucial gap in the legal framework that has remained largely unaddressed until now.

The circumstances surrounding this incident align squarely with the provisions of civil liability under negligence. The driver was operating a wheeled excavator without a proper licence where the employer knowingly allowed him to operate heavy machinery, demonstrates a clear breach of duty of care. The construction company’s decision to permit this arrangement due to a shortage of operators exemplifies the kind of systemic failure that the Civil Liability Act aims to address.

Section 79 of the Act defines an employer as one who has the power to give orders or instructions to employees in relation to the performance of their functions. In this case, the construction company, by assigning the suspect to operate machinery despite his lack of qualifications, clearly falls within this definition. Furthermore, Section 80 stipulates that an employer is strictly liable for harm caused by their employee. This provision is particularly relevant here, as it establishes a direct link between the company’s actions and the tragic outcome.

The potential damages in this case are multifaceted and significant. Firstly, general damages should be considered to compensate for the loss of life and the economic impact on the surviving family members. Given that the deceased woman ran a canteen, and her husband was recently offered a regular job, the court should carefully assess the long-term financial implications of this loss. Section 124 of the Act provides guidance, suggesting that if precise calculation of income is not possible, the court may award an amount equal to at least ten years’ minimum wage, up to a maximum of fifteen years’ minimum wage.

Non-economic damages for the surviving husband and six-year-old son warrant careful consideration. Section 133 recognises the profound emotional trauma of their loss as compensable non-economic damage. Given the severity—particularly for the young child who lost both mother and sister—the court should consider awarding the maximum allowable under Section 135, which caps such damages at ten years’ minimum wage.

This case warrants punitive damages under Sections 136-138. The construction company’s reckless decision to allow an unqualified individual to operate dangerous machinery constitutes “outrageous conduct”. Substantial punitive damages would not only penalise this specific negligence but also send a strong deterrent message to other employers, emphasising the severe consequences of prioritising operational convenience over safety.

These damages would serve multiple purposes: providing financial support to the bereaved family, acknowledging their emotional suffering, and crucially, deterring other companies from compromising on safety measures. This multi-faceted approach ensures both justice for the victims and enhanced workplace safety across Bhutan.

Thus,  imposing general, non-economic, and punitive damages, the court will deliver justice to the husband and her surviving child  and send a powerful message to the society turning grief into meaningful change in the country.

Sonam Tshering

Lawyer, Thimphu

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