Great Eastern General Insurance Ltd and another v Next of Kin of Md Sharif Hossain Rana Abdul Malek

• Jurisdiction: Singapore
• Judge: Mavis Chionh Sze Chyi JC
• Judgment Date: 31 March 2020
• Neutral Citation: [2020] SGHC 64
• Court: High Court (Singapore)
• Docket Number: Tribunal Appeal No 11 of 2019
• Year: 2020
• Published date: 04 April 2020
• Hearing Date: 03 February 2020
• Plaintiff Counsel: Hong Heng Leong (Just Law LLC)
• Defendant Counsel: Lee Ee Yang, Claire Teng Shu-Min and Douglas Pang Wei Jie (Covenant Chambers LLC)
• Subject Matter: Employment Law,Work Injury Compensation Act
• Citation: [2020] SGHC 64

Mavis Chionh Sze Chyi JC: Background

This is an appeal under s 29 of the Work Injury Compensation Act (Cap 354, 2009 Rev Ed) (“WICA”) in respect of a decision by the Assistant Commissioner (“AC”) to allow the claim for work injury compensation by the next of kin (“the Respondents”) of one Md Sharif Hossain Rana Abdul Malek (“the Deceased”). The assessed amount was $170,000. The Appellants are the Deceased’s employer Capstone Engineering Pte Ltd (“Capstone”) and Capstone’s insurer Great Eastern General Insurance Limited (“GE General Insurance”).

The events in the month or so from the incident of the piece of timber falling on the Deceased at the Ghim Moh Lane construction worksite on 9 October 2015, up till his hospitalisation on 7 November 2015 and his death on 13 November 2015, are not in any real dispute. They are set out in the AC’s grounds of decision of 2 December 2019.¹ The facts as to the autopsy on 14 November 2015, the autopsy report of 16 November 2015, the Coroner’s Certificate of 3 May 2016, and the Changi General Hospital (“CGH”) medical report of 21 September 2017 are also not in any real dispute. These too are summarised in the AC’s grounds of decision.²

It is not disputed that when the Deceased was admitted to CGH on 7 November 2015, he was said to have vomited for the past three days, and he was showing altered mental state.³ The autopsy report of 16 November 2015 noted, inter alia, that post-mortem CT scan showed that the spinous process of the Deceased’s T1 vertebra was detached from the T1 vertebral body, and stated the cause of death as “cardio respiratory failure pending further investigations”. It is also not disputed that for the purposes of the coroner’s inquiry, the Coroner had sought further clarification with the senior consultant and forensic pathologist Dr Wee Keng Poh (“Dr Wee”); and that the final cause of death was given by Dr Wee as “[h]ypoxic ischaemic encephalopathy following status epilepticus, consistent with spinal injury”. The Coroner noted that the dropping of the timber appeared to be accidental, and in addition, that the extent of the Deceased’s injuries “only became evident much later, after he was hospitalised”. The Coroner’s conclusion was that the Deceased “passed away … due to a brain injury [hypoxic ischaemic encephalopathy] following a seizure [status epilepticus], consistent with spinal injury”. He noted that Dr Wee had clarified that the injuries found on the Deceased were consistent with the impact of the timber falling on him, and that the spinal injury had caused the Deceased to suffer post traumatic pain in the neck and was the underlying cause of the status epilepticus.⁴ At the end of the WICA proceedings, the AC was satisfied that the Deceased’s death was caused by the spinal injury which had resulted in post-traumatic pain and status epilecticus; that all three requirements of s 3(1) WICA were satisfied; that the presumption in s 3(6) WICA was engaged because the accident (the spinal injury from the fallen timber which caused post-traumatic pain and status epilepticus) had arisen in the course of the Deceased’s employment at the construction worksite; and that the Appellants had failed to rebut the statutory presumption that the accident had arisen out of the Deceased’s employment.

On the preliminary issue of whether a “substantial question of law” is involved in the appeal

Pursuant to s 29(2A) WICA, no appeal shall lie against any order made by the Commissioner unless a substantial question of law is involved in the appeal and the amount in dispute is not less than $1,000. There is no question that the amount in dispute is more than $1,000.

As to whether a substantial question of law is involved in this appeal, the Appellants have in the written submissions tendered on their behalf sought to frame two alleged legal issues: one purports to relate to the Coroner’s Certificate,⁵ the other to the application of s 3(1) WICA versus s 3(6) WICA in the present case.⁶ On closer scrutiny, both issues as framed in the Appellants’ written submissions really focus on the question of whether the Coroner’s Certificate was admissible as evidence in the proceedings before the AC, and in that connection, whether the Respondents – having as the claimants below declined to call any witnesses – could discharge the burden of proving their claim by relying on the Coroner’s Certificate. Central to the arguments made on behalf of the Appellants is the contention that s 45 of the Coroners Act (Cap 63A, 2012 Rev Ed) (“CA”) prohibits the admission of a Coroner’s Certificate in any subsequent judicial proceedings.

A number of local High Court authorities have established the errors of law which may provide grounds for appeal under s 29(2A) WICA. I set out below the relevant extract from Chan Seng Onn J’s judgment in Arpah bte Sabar and others v Colex Environmental Pte Ltd [2019] SGHC 137 (“Arpah”) which explains (at [17]–[18]) that such errors include:

…misinterpretation of a statute or any other legal document or a rule of common law; asking oneself and answering the wrong question; taking irrelevant considerations into account or failing to take relevant considerations into account when purporting to apply the law to the facts; admitting inadmissible evidence or rejecting admissible and relevant evidence; exercising a discretion on the basis of incorrect legal principles; giving reasons which disclose faulty legal reasoning or which are inadequate to fulfil an express duty to give reasons; and misdirecting oneself as to the burden of proof.

In addition, “a factual finding which was such that ‘no person acting judicially and properly instructed as to the relevant law could have come to the determination upon appeal’ amount[s] to a misconception or error in point of law… These must be ‘findings that no person would have come to if he had applied the law properly. It does not mean that every manifestly wrong finding of fact amounts to an error of law”.

[emphasis added]

Given the Appellants’ contentions regarding the construction of s 45 CA, the consequent admissibility (or otherwise) of the Coroner’s Certificate and the discharge of the Respondents’ burden of proof as the claimants below, I am prepared to hold that there is a substantial question of law involved in the present appeal.

On the elements of a work injury compensation claim

The starting-point of a claim for work injury compensation is s 3(1) WICA, which states:

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

For the employer to be liable to pay compensation, therefore, the employee has to show, firstly, that he has suffered a personal injury; secondly, that the injury has been caused by an accident; and thirdly, that the accident arose out of and in the course of his employment: per Sundaresh Menon JC (as he then was) in NTUC Income Insurance Co-operative Ltd and another v Next of kin of Narayasamy s/o Ramansamy, deceased [2007] 4 SLR(R) 507 (“Narayasamy”).

It is not disputed that the Deceased suffered a personal injury in the form of his death, and that the first element of the work injury compensation claim under s 3(1) is satisfied. However, the Appellants dispute that the second and third elements are satisfied.

On the second element of the work injury compensation claim: whether the injury to the Deceased was caused by an “accident”

In respect of the second element of the work injury compensation claim, the Appellants say that they do not dispute that a “minor accident” occurred on 9 May 2015 in that a piece of timber fell on the Deceased at the worksite, but they argue that this “minor accident” only caused “some minor orthopaedic injury”: according to the Appellants, even the detachment of the spinous process of the Deceased’s T1 vertebra from the T1 vertebral body could not have been serious enough to cause his seizures (status epilepticus), the brain injury or brain damage resulting from these seizures (hypoxic ischaemic encephalopathy), and the eventual death.

In this connection, as I alluded to earlier, the Appellants argue that the Respondents’ reliance on the Coroner’s Certificate to prove their claim was fatally flawed because – according to the Appellants – in the first place, the Coroner’s Certificate is inadmissible in any judicial proceedings subsequent to the Coroner’s Inquiry. The Appellants say this is the position mandated by s 45 CA.

This is what s 45 CA says:

No oral testimony or conditioned statement admitted under section 33 in the course of an inquiry shall be admissible in any subsequent judicial or disciplinary proceedings as evidence of any fact stated therein, other than proceedings for an offence under this Act or an offence of giving or fabricating false evidence under any written law.

As an aside, I note that the Respondents do not appear to challenge the Appellants’ position that the WICA proceedings before the AC fall within the term “judicial proceedings”. Pursuant to s 30(1) WICA, for the purposes of the WICA, the Commissioner shall

have all the powers of a District Judge for the summoning and examination of witnesses and the administration of oaths or affirmations and for compelling the production of documents and material objects.

I make the following points about the Appellants’ argument on the application of s 45 CA to Coroner’s Certificates.

Firstly, the express words of s 45 CA refer to “oral testimony or conditioned statement admitted under section 33 [of the CA] in the course of an inquiry” [emphasis added]. The Appellants have not shown me any recognised principles of statutory interpretation that would allow the courts to read these italicised words as referring to or including the Coroner’s Certificate. With...