Khan Mohammad Razib v Ocean Continental Pte Ltd

• Jurisdiction: Singapore
• Judge: Victor Yeo Khee Eng
• Judgment Date: 30 August 2021
• Neutral Citation: [2021] SGDC 180
• Court: District Court (Singapore)
• Docket Number: District Court Suit No 183 of 2021, Registrar’s Appeal No. 53 of 2021, HC/RAS 16 of 2021
• Published date: 07 September 2021
• Year: 2021
• Hearing Date: 15 July 2021,09 July 2021
• Plaintiff Counsel: Mr Pillai Subbiah (M/s Tan & Pillai)
• Defendant Counsel: Ms Tan Hui Ying Grace, Mr Anparasan, Ms Amelia Aw Zhi Yue and Ms Lim Ying Hui (WhiteFern LLC)
• Subject Matter: Civil Procedure,Appeals,Striking out
• Citation: [2021] SGDC 180

Principal District Judge Victor Yeo Khee Eng: Introduction

This is the plaintiff’s appeal against the decision of the learned Deputy Registrar (“DR”) in relation to DC/SUM 1694/2021, which was an application taken out by the defendant to strike out the plaintiff’s statement of claim. The learned DR allowed the defendant’s application, and accordingly, the plaintiff’s action against the defendant was dismissed. The Registrar’s Appeal (“RA”) was argued before me and I affirmed the learned DR’s decision. These are the grounds of my decision.

Background Facts

The plaintiff’s claim against the defendant is for loss and damages for personal injuries suffered by him following an accident that occurred while he was working at Sembcorp Jurong Shipyard, Tanjong Kling Road, Singapore (“the worksite”). At the material time, the plaintiff was employed as a general worker by the defendant. He alleged that while he was carrying out his work on 9 July 2019, an accident occurred at the worksite and he suffered injuries as a result of the accident.

An i-Report was filed by the defendant on 29 July 2019 and the Ministry of Manpower (“MOM”) investigated the accident. It was not disputed that the MOM issued a Notice of Assessment of compensation (“NOA”) on 1 June 2020. The NOA assessed the outcome of the plaintiff’s claim as “no permanent incapacity resulting from accident arising out of and in the course of employment.”

The plaintiff proceeded to file an objection to the NOA via his current solicitors, M/s Tan & Pillai within 14 days after the service of the NOA. The MOM reviewed the case following the plaintiff’s objection and maintained its previous assessment.

The plaintiff then filed a request to withdraw his work injury compensation claim on 23 November 2020, which was almost six (6) months after the date of the NOA. The MOM responded to the plaintiff’s withdrawal request on 26 November 2020 and informed the plaintiff that the claim was not withdrawn within 28 days of the date and service of the NOA, and in accordance with s 33 of the Work Injury Compensation Act, the plaintiff may not be able to file a civil suit against his employer for damages.

On 25 January 2021, the plaintiff commenced his common law proceedings and filed the present suit (DC/DC 183/2021). The defendant applied to strike out the plaintiff’s statement of claim.

The decision of the learned DR

The learned DR ruled that the applicable law in this case would be the repealed Work Injury Compensation Act (Cap. 354) (2009 Rev Ed) (the “Act”) as the accident occurred on 9 July 2019. The Work Injury Compensation Act 2019 came into force partially on 1 September 2020 and 1 January 2021, and hence, would not apply.

Section 33(2) of the Act provides as follows: “(2) Subject to subsections (2A) and (2B), no action for damages shall be maintainable in any court by an employee against his employer in respect of any injury by accident arising out of and in the course of employment – (a) If he has a claim for compensation for that injury under the provisions of this Act and does not withdraw his claim within a period of 28 days after the service of the notice of assessment of compensation in respect of that claim; (b) If he and his employer have agreed or are deemed to have agreed to the notice of assessment under section 24(2)(a) for that injury; or (c) If he has recovered damages in respect of the injury in any court from any other person.”

Sections 33(2A) and (2B) states as follows: “(2A) Where – (a) a claim for compensation under this Act is made for an employee’s injury by accident arising out of and in the course of the employment; (b) there is no objection by the employee to the notice of assessment of compensation in respect of that claim; (c) the compensation ordered by the Commissioner thereafter in respect of that claim is of a lesser amount than that stated in that notice of assessment of compensation in respect of that claim; (d) within a period of 28 days after the making of the order, the employee notifies the Commissioner and the employer in writing that he does not accept the compensation so ordered, and has not received or retained any part of such compensation earlier paid (if any) by the employer; and (e) no appeal under section 29 is made against the order, the employee may institute an action in any court against his employer for damages in respect of that injury and any order made by the Commissioner in respect of that injury shall be void. (2B) Where – (a) the Commissioner assesses or makes an order that no compensation shall be payable for a claim for compensation for an employee’s injury by accident arising out of and in the course of employment because – (i) the injury did not arise out of and in the course of the employee’s employment; or (ii) the injured person is not an employee within the meaning of this Act; or (b) an appeal to the High Court under section 29 from an order made by the Commissioner has failed because of any reason mentioned in paragraph (a)(i) or (ii), the employee may institute an action in any court to recover damages independently of this Act for injury caused by that accident.”

The learned DR ruled that the plaintiff cannot maintain an action for damages in this case as he failed to withdraw his claim under the Act within 28 days of the NOA.

Further, s 33(2A) of the Act would not apply as there was an objection filed by the plaintiff. Section 33(2B) of the Act would also not apply as the NOA in this case did not state that there was no compensation to the plaintiff because the plaintiff’s injury did not arise out of and in the course of the employee’s employment, or that the plaintiff was not an employee with the meaning of the Act.

Under the Act, no action for damages shall be maintainable in any court by the plaintiff. Therefore, the learned DR ruled that the plaintiff does not have a reasonable cause of action and the claim is strikable under O 18 r 19(1)(a). The learned DR was of the view that there was no need for him to deal with the other limbs of O18 r 19(1).

The learned DR also referred to the High Court case of Abdul Hadi bin Hamdan v Goldin Enterprise Pte Ltd [2012] SGHC 192 (“Goldin”), which held that the plaintiff there could not maintain his claim for damages at common law as he did not withdraw his claim under the Act within 28 days after service of the NOA.

The learned DR also found that the case of Chua Ah Beng v The Commissioner for Labour [2002] SGHC 197 (“Chua Ah Beng”) did not assist him as the case turned on the old Workmen’s Compensation Act (Cap 354) (Rev Edition 1998) which did not contain the relevant provisions discussed.

Accordingly, the learned DR allowed the defendant’s application and struck out the statement of claim.

Submissions of the Plaintiff

At the RA hearing, the plaintiff’s counsel, Mr Pillai submitted that the learned DR erred in striking out the claim as the threshold of striking out is high and as long as there are issues of fact and law that need to be proved, the claim should not be struck out without a trial, even if the plaintiff’s claim seems weak. An action should only be struck out in a plain and obvious case, or if it was clearly unsustainable.

The learned counsel argued that the plaintiff did not receive any claim assessed by the MOM as the NOA was for no compensation. As the plaintiff has failed under WICA, he is entitled to proceed with the common law action and he is not bound by s 33(2)(a) of the Act.

The learned counsel further submitted that as there was an objection raised within 14 days of the NOA, the plaintiff could not withdraw his claim and the 28 days period for withdrawal does not apply. The learned counsel submitted that the final assessment was on 17 Nov 2020 and the 28 days period for...