Chen Hsin Hsiong v Guardian Royal Exchange Assurance plc

• Jurisdiction: Singapore
• Judge: Judith Prakash JC
• Judgment Date: 03 March 1994
• Neutral Citation: [1994] SGHC 54
• Docket Number: District Court Appeal No 56 of 1993
• Date: 03 March 1994
• Year: 1994
• Published date: 19 September 2003
• Plaintiff Counsel: Lee Tau Chye (Lee Brothers)
• Citation: [1994] SGHC 54
• Defendant Counsel: Gan Seng Chee (Ang & Pnrs)
• Court: High Court (Singapore)
• Subject Matter: 'Creating a legal liability in some person other than the employer',s 18(b)Workmen's Compensation Act (Cap 354),s 9A(1) Interpretation Law Act (Cap 1),Court judgments,High Court decision,Construction of statute,Employees’ duties,Whether lower court may look at intent of statute to override existing case law,Contributory Negligence and Personal Injury Act (Cap 54),Courts and Jurisdiction,Statutory Interpretation,s 18(b) Workmen's Compensation Act (Cap 354),Whether employer's claim defeated,Employee contributorily negligent,Employer's claim against third party tortfeasor,Purposive approach,Indemnity,Workmen's compensation,Whether indemnity limited to percentage of tortfeasor's liability for negligence,Binding force,Employment Law,Employer guiltless,Words and Phrases

Cur Adv Vult

The question raised by this appeal is whether an employer (or his insurer) who has paid compensation under the Workmen`s Compensation Act (Cap 354) (`the Act`) in respect of a workman killed in an accident arising from the negligence of a stranger can claim an indemnity from that stranger if the workman`s own negligence also contributed to the accident. The answer depends on the construction of s 18 of the Act which reads:

Where any injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof -

(a) the workman may take proceedings against that person to recover damages and may claim against any person liable to pay compensation under this Act, but he shall not be entitled to recover both damages and compensation; and

(b) if the workman has recovered compensation under this Act, the person by whom the compensation was paid, and any person who has been called upon to pay an indemnity under section 17(2), shall be entitled to be indemnified by the person so liable to pay damages as aforesaid.

The facts are straightforward. On 2 April 1990, one Cinniah Pichai Kannu, the workman concerned, who was then in the employ of Total Security Services, was crossing Farrer Road in the course of his employment when he was hit and fatally injured by a car driven by the appellant. The respondents, as insurers of Total Security Services, under a Workmen`s Compensation Insurance Policy, and in accordance with an order from the Ministry of Labour, paid the deceased workman`s dependants a sum of $21,192 as compensation for his death. Afterwards, the respondents commenced this action in the district court against the appellant for an indemnity under s 18(b) of the Act. In doing so, the respondents stood in the shoes of the deceased workman`s employer and their rights were subject to the same limitations as the employer`s rights would have been.

At the trial, it was agreed that liability for the accident should be apportioned at 35% on the part of the deceased and 65% on the part of the driver of the car, the appellant. The appellant then contended that because the negligence of the deceased had contributed to his fatal accident, his employer (and accordingly, the respondents) was not entitled to an indemnity under s 18(b). This contention was rejected by the learned district judge who gave judgment for the respondents for 65% of $21,192, such percentage being the proportion of the appellant`s liability for the accident. The appellant contends that this decision was wrong and contrary to the decisions of the English Court of Appeal in Cory & Son Ltd v France, Fenwick & Co Ltd and the Australian High Court in Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd which the learned district judge should have followed instead.

Before I go on to discuss the above authorities, I think that it is useful to look at s 18 and determine what is required before someone who has paid compensation can make a claim under it for an indemnity. From its preliminary lines (those appearing before sub-s (a)), it is apparent that s 18 applies to situations where there is an injury sustained by a workman during the course of his employment and such injury was caused under circumstances `creating a legal liability in some person other than the employer to pay damages in respect thereof`. Here we have an injury. We have a workman who was injured in the course of his employment. We have an accident caused by, to a major extent, the negligence of the appellant, a person who is `other than the employer`. Whilst in the past the fact that the workman was also negligent would have prevented him from claiming damages from the appellant, such is no longer the case. By virtue of the Contributory Negligence and Personal Injury Act (Cap 54), the workman`s claim for damages against the appellant would not have been defeated by reason of his own contributory negligence. Therefore, we have here a person who is not the employer and who would be legally liable to pay the workman damages for his injury. All the ingredients required by s 18 are present. Thus, quite apart from authority, it appears to me that this is a situation which comes under the preliminary lines of the section and that the respondents are entitled to claim an indemnity from the appellant pursuant to sub-s (b). I see nothing in either Cory `s case1 or the Public Transport Commission of New South Wales case2 which is contrary to this holding.

Cory `s case1 concerned the interpretation of the equivalent English provision, that is, s 6 of the English Workmen`s Compensation Act 1906. The first few lines of that section read `Where the injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages thereof `. [Emphasis added.] It would be noted that the words in italics are identical to those appearing in the preliminary lines of s 18 of the Singapore Act. The plaintiffs in Cory `s case1 were the employers of two boatmen who were injured in an accident which took place as the plaintiffs` vessel was approaching a waterside coal depot which was being used by and under the control of the defendants. The plaintiffs paid compensation to their injured boatmen in accordance with the Workmen`s Compensation Act 1906 and then made a claim against the defendants for an indemnity under s 6 of that Act. The trial judge found that the accident had been caused by the negligence both of the defendants and of the plaintiffs themselves, through the officers on their vessel. He then held that as the plaintiffs had been guilty of negligence which contributed to the accident they could not maintain the action. The plaintiffs` appeal to the Court of Appeal was dismissed. Whilst the appellate judges came to their decision by varying routes, they all held, in effect, that the true construction of the words in s 6 which appear above in italics, is to allow an employer to make an indemnity claim against another person only where the employer himself bears no responsibility whatsoever for the injury and his liability to the workman arose only out of the statute. An examination of the judgments makes this clear.

Lord Justice Buckley proceeded on the basis that the facts showed that both...