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Last week, the Office of the Attorney General (OAG) charged the National Housing Development Corporation Limited (NHDCL) for criminal nuisance “after a rusted electric pole in Changjiji housing colony collapsed injuring a woman in April this year.” Questions are now raised if NHDCL loses, who would pay the damages and whether NHDCL as a corporation is accountable for such criminal offence. 

The general criminal justice system rule is that the only person who commits the crime is accountable and no other person.  Under this rule, only those who erected the pole can be prosecuted. However, Sections 508 to 512 of Penal Code of Bhutan (PCB), 2004 (Amendment 2011) provides an exception to the general rule. This secondary liability evolved under the “common law doctrine of agency, respondeat superior (let the master answer) and qui facit peralium facit per se (he who acts through other acts himself) – the responsibility of the superior for the acts of their subordinate”. This liability was mainly applied in civil suits, especially in accident cases.  But this principle has now extended in criminal laws in many countries including Bhutan.  

Section 508 to 512 of PCB deals mainly based on the employer-employee relationship where the employer is “made vicariously liable for the public nuisance committed by” their employee.  Describing this, Lord Chelmsford said, “It has long been established by law that a master is liable to third persons for any injury or damage done through the negligence or unskillfulness of a servant acting in his master’s employee. This is because that every act which is done by the servant in the course of his duty is regarded as done by his master’s order, and, consequently, it is the same as if it were master’s act.” 

In the current case, NHDCL as a master has the “deepest pockets” as a corporate entity, generating a profit from the activities of its employees. They should also bear any losses caused by those activities.” Recognizing the vicarious liability can “encourage accident prevention by giving an employer a financial interest in encouraging his employees to take care of the safety of others.”  Companies like NHDCL, BPC, and Telecom not only control their employees but also generate profit. They should also be held equally liable for the failures of the employees. 

In the current case, under Section 509 of PCB “whenever a duty to act is imposed by law upon a corporation or other business association, an agent of the corporation or other business association, who has primary responsibility for the discharge of the duty is legally accountable for a reckless omission to perform the duty to the same extent as if the duty were imposed by law directly upon the corporation, other business association, or the agent.” 

PCB not only empowers the court to require the corporation or business entities to pay damages, forfeit or revoke licenses or dissolve these companies but also has authority to imprison or impose fines on the members of the Board of Directors as if they have committed the crime directly. Thus, our municipalities, corporate bodies, and other businesses need to perform their duties diligently or else the public has the legal tool to force these bodies to perform their duty of care. Bhutanese people will now wait and see how our courts would interpret this principle as it has numerous future implications. Many accidents do happen in Bhutan for similar reasons. 

Sonam Tshering

Lawyer, Thimphu

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

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