Allianz Insurance Co (Singapore) Pte Ltd and others v Ma Shoudong and another

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 29 April 2011
• Neutral Citation: [2011] SGHC 106
• Date: 29 April 2011
• Docket Number: Originating Summons No 1158 of 2010/Z
• Published date: 06 May 2011
• Plaintiff Counsel: Niru Pillai (Global Law Alliance LLC)
• Hearing Date: 08 April 2011
• Defendant Counsel: Shanker Kumar (Hoh Law Corporation)
• Court: High Court (Singapore)
• Subject Matter: section 29(2A),Employment Law,Work Injury Compensation Act,section 3(6)

Lai Siu Chiu J:

It has been two years since Wang Zeng Ming (“the deceased”) at 21 years of age passed away on 18 April 2009. The deceased, a national of the People’s Republic of China, was the son of Ma Shoudong and Wang Jijin (“the respondents”). The respondents did not have the closure they probably expected when the Assistant Commissioner for Labour (“the Commissioner”) awarded them $140,000 (“the Award”) on 28 October 2010 under the Work Injury Compensation Act (Cap 354, 2009 Rev Ed) (“the Act”) for their son’s untimely demise. That was because the deceased’s employer Singapore Airport Terminal Services Limited (“SATS”) and its co-insurers Allianz Insurance Co (Singapore) Pte Ltd and Singapore Aviation and General Insurance Co Pte Ltd (who are the first and second appellants respectively), chose to appeal against the Award, thereby prolonging the respondents’ grief. Given China’s one child policy, it was highly unlikely that the deceased had any siblings. No amount of compensation let alone the Award, would have consoled the respondents in their irreplaceable loss if the deceased had been their only child.

Since about July 2007, the deceased had worked as a cabin service assistant for SATS (which is the third appellant in this action). His job was to deliver food and beverages from the SATS catering building to aeroplanes. On the day of his death, the deceased was working with a colleague Lee Keok Chuan (“Lee”). The pair made deliveries to two aeroplanes. For the third delivery which was to a bigger aeroplane than to the first two aeroplanes, the pair loaded about 3 – 4 containers and 8 – 10 oven racks onto trolleys. Each container and oven rack weighed up to 25 kilograms. The trolleys were then wheeled to, and loaded onto a nearby delivery truck. The pair subsequently accompanied the delivery truck to the aeroplane and assisted in the unloading of the trolleys. The entire delivery took around 1½ hours. After completing the delivery, the deceased went to the designated resting area for a short break. At around 7.45pm he vomited and collapsed. An ambulance promptly arrived to take him to the hospital but he was pronounced dead at 8.50pm.

The issue before the Commissioner was whether the death had been caused by an accident that arose out of and in the course of the deceased’s employment pursuant to s 3(1) of the Act; the Commissioner held that it was and accordingly made the Award.

It was common ground between the parties that the deceased had the congenital condition of Myocardial Bridging, where the coronary arteries tunnel into the muscle of the heart instead of resting on top of it at the endocardium. The respondents’ expert witness was Associate Professor Gilbert Lau (“Professor Lau”), a senior consultant forensic pathologist at the Health Sciences Authority. He gave evidence that it was likely that the physical strain of the deceased’s work exacerbated his heart condition which then caused him to suffer cardiac arrest or a lethal episode of cardiac arrhythmia. The appellants disputed Professor Lau’s evidence. Their own expert witness Dr Baldev Singh (“Dr Singh”), a cardiologist in private practice, testified that the deceased’s heart condition was generally benign. Given the amount of time the deceased had to rest after the third delivery and the non-strenuous nature of the job, Dr Singh opined that it was more likely than not that the deceased had suffered from an unpredictable and random attack of “sudden death syndrome”.

The Commissioner preferred Professor Lau’s evidence. Accordingly, he found that the appellants had failed to discharge their burden of proof to show that the death had not arisen out of the deceased’s employment.

The appeal

The appellants filed Originating Summons No 1158 of 2010 (“the OS”) on 11 November 2010 appealing against the Award and prayed for it to be set aside and for the Commissioner’s decision to be reversed. Two grounds for the appeal were set out in the OS. First, it was said that the Commissioner was wrong to have reversed the burden of proof. This ground required an analysis of s 3 of the Act. Second, it was alleged that the Commissioner reached the wrong finding of fact. This ground concerned the application of s 29(2A) of the Act.

First ground of appeal: reversal of the burden of proof

An employer’s liability for compensation is imposed by s 3(1) of the Act which reads:

Employer’s liability for compensation

3. – (1) If in any employment personal injury by accident arising out of and in the course of employment is caused to an employee, his employer shall be liable to pay compensation in accordance with the provisions of this Act.

[emphasis added]

Section 3(1) must be read with s 3(6) which states:

(6) For the purposes of this Act, an accident arising in the course of an employee’s employment shall be deemed, in the absence of evidence to the contrary, to have arisen out of that employment.

[emphasis added]

Section 3(6) is very much a local innovation. It was not present in the Act’s predecessor the Workmen’s Compensation Ordinance (9 of 1932) and was added only in the Workmen’s Compensation Ordinance (31 of 1954) as s 4(5). The presumption was described by the Acting Commissioner for Labour (Proceedings of the Second Legislative Council of the Colony of Singapore, 4th Session 1954/1955, (15 June 1954) at B142) as:

Perhaps the most important change proposed is in the law itself. Under the existing legislation a workman, to obtain compensation, has to prove that the accident arose both out of and in the course of his employment. Under the present proposals the workman must still prove that the accident arose in the course of his employment, but the onus of proving that it did not arise out of his employment will rest on the employer if he holds that the claimant is not entitled to benefit.

Section 4(5) (as it was) did more than simply create a rebuttable presumption for the employee’s benefit. It also unintentionally clarified the local position on two issues of interpretation arising from what is now s 3(1). First, it was now clear that “arising out of” and “arising in the course of” are two separate and distinct concepts. This pertinent distinction stands in contrast to a line of cases which suggested that “arising out of and in the course of” could be regarded as a single term of art. In McLauchlan v Anderson [1911] SC 529, a man stumbled and fell as he climbed down from his wagon to retrieve a pipe which he had dropped. The wagon ran over and killed him. The Lord President conceded the theoretical distinction between “arising out of” and “arising in the course of” but said (at 532) that:

In a great many cases, however, the two phrases do not admit of separate consideration; and the present is one of those cases. If this accident took place in the course of the workman’s employment, it also indubitably arose out of that employment; if not, not.

Second, it was also clear from the wording of s 4(5) (as it was) that it is the accident alone that has to arise out of and in the course of the employment. This is in contrast to the House of Lords decision in Fenton v J Thorley & Co., Limited [1903] AC 443 where Lord Macnaghten held that (in relation to the Workmen’s Compensation Act 1897) the phrase “injury by accident” was intended to be a compound phrase (at 448):

Then comes the question, Do the words “arising out of and in the course of the employment” qualify the word “accident” or the word “injury” or the compound expression “injury by accident”? I rather think the latter view is the correct one.

The consequence of s 3(6) is that, as the judge in NTUC Income Insurance Co-operative Ltd and another v Next of kin of Narayasamy s/o Ramasamy, deceased [2006] SGHC 162 (at [20]) (“the NTUC Income case”) observed, s 3(1) requires the employee to prove three conditions: he has suffered a personal injury; the injury was caused by an accident; and the accident arose out of and in the course of his employment.

The first condition was not disputed by the appellants: the personal injury suffered by the deceased was his death. The second condition was also not in dispute. The appellants conceded that the cardiac...