Minichit Bunhom v Jazali bin Kastari and another

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: See Kee Oon JC
• Judgment Date: 07 December 2016
• Neutral Citation: [2016] SGHC 271
• Citation: [2016] SGHC 271
• Published date: 04 May 2018
• Defendant Counsel: Mahendra Prasad Rai (Cooma & Rai)
• Plaintiff Counsel: Simon Yuen (Legal Clinic LLC)
• Subject Matter: Tort,Negligence,Medical expenses,Special damages
• Date: 07 December 2016
• Hearing Date: 19 October 2016,07 December 2016,28 October 2016
• Docket Number: Registrar’s Appeal (State Courts) No 22 of 2016

See Kee Oon JC: Introduction

In tort law, special damages are meant to compensate an injured party for specifically quantifiable pecuniary loss that has been occasioned by the tortfeasor’s conduct. Does the duty of an employer of a foreign worker include having to bear the cost of medical treatment for injuries suffered in an accident in circumstances which create a legal liability in a third party to pay damages? What does “double recovery” mean when determining special damages arising from a personal injury claim where the injured party has not borne and cannot be liable in law to bear the loss? This appeal was brought against the decision of a District Judge in chambers disallowing medical expenses as a head of special damages, and it revolved around these issues.

Background

The appellant had brought an action in the District Court claiming, inter alia, special damages in the sum of $15,682.97 which was incurred for medical expenses. He was a foreign worker who was involved in a road traffic accident on 8 November 2013, when a lorry driven by the 1st respondent hit a road divider and resulted in him suffering various injuries. The accident occurred in the course of the appellant’s employment with KPW Singapore Pte Ltd (“KPW”). KPW paid for the appellant’s medical expenses.

The 1st respondent was unrepresented and did not participate in the proceedings at all material times. The 2nd respondent, Ergo Insurance Pte Ltd (“Ergo”), is the insurance company which had obtained leave to intervene in the proceedings in the court below. It was not disputed that the 1st respondent was liable for the appellant’s injuries and the only issue in contention was how damages would be assessed. At the hearing for assessment of damages (“the AD hearing”), the appellant claimed that he could not afford the medical expenses and KPW had thus paid them “by way of an advance” on his behalf. He therefore submitted that he should be compensated since there was an expectation that he would have to repay KPW.

The AD hearing led to an appeal to the District Judge, who found that the 1st respondent was not liable to compensate the appellant for the medical expenses because (a) the Employment of Foreign Manpower Act (Cap 91A, 2009 Rev Ed) (“EFMA”) imposed a duty on KPW as the employer to bear the cost of medical treatment arising from the accident; (b) it was not open to KPW to delegate this responsibility to the appellant by the extension of a loan with an expectation of repayment; and (c) allowing the claim would result in double recovery for the appellant. There was no appeal against the District Judge’s other findings in respect of various heads of damages.

The present appeal to the High Court was brought with the leave of the District Judge and restricted only to the question of whether the appellant was entitled to recover the medical expenses as special damages. Having carefully considered the arguments presented, I was not persuaded that the District Judge had erred and I therefore dismissed the appeal and stated my brief grounds orally. I now set out the full grounds for my decision.

The appellant’s submissions

On appeal, Mr Simon Yuen (“Mr Yuen”), counsel for the appellant, submitted that the general principle of tort law required that the appellant be compensated for all losses suffered as a result of the negligence of a tortfeasor. In summary, Mr Yuen’s arguments were as follows:¹ to disallow the appellant’s claims for medical expenses would be neither fair, just nor reasonable, and would lead to a miscarriage of justice. The tortfeasor should not be absolved from his tortious liability just because his victim is an injured foreign worker; the provisions under the EFMA cannot be interpreted to deny the injured foreign worker his rights under common law and to preclude him from exercising his said rights and claiming any particular head of damage. The employer’s duties under EFMA should have no bearing on whether the injured foreign worker is allowed to bring a common law claim for damages against a negligent tortfeasor; the issue of double recovery by the employer was irrelevant as this was a suit between the appellant and the respondents, and the employer was not a party to the suit; and the evidence before the court showed that there would be no double recovery by the appellant.

Noting that a recent decision of the High Court in Sun Delong v Teo Poh Sun [2016] SGHC 129 (“Sun Delong”) had been adverted to but distinguished by the District Judge, Mr Yuen sought to argue that the District Judge was not entitled to decline to follow this case which was binding on her. Mr Yuen sought to rely on the court’s ratio in Sun Delong where Choo Han Teck J had held that the injured plaintiff-employee was entitled to claim his medical expenses as special damages even though his ex-employer had paid those expenses upfront. Choo J stipulated a condition that the plaintiff was to reimburse his ex-employer.

Mr Yuen argued that there was nothing in the EFMA that precluded the injured foreign worker from claiming his medical expenses from the tortfeasor. Mr Yuen submitted that he had a “right to recover these monies from the negligent tortfeasor” and denying him that right would mean that he would be “left out of pocket for these sums, which would be a grave miscarriage of justice”.²

The 2nd respondent’s submissions

Mr M P Rai (“Mr Rai”), acting for Ergo, the 2nd respondent, contended on appeal that the District Judge was correct in her finding, for the following key reasons:³ the EFMA lays down a non-delegable statutory responsibility on the employer to bear all medical expenses of its employee. To delegate or contract it away would be a breach of the conditions of the work permit, contrary to s 22(1)(a) of the EFMA. Moreover, the EFMA mandates that the employer obtains a minimum sum insurance to protect itself from potential liability for the medical expenses. The clear statutory intention is for the employer is to bear the full medical expenses of the foreign worker and to claim it from its insurer. It will then be for the insurer to recover its outlay by virtue of subrogation. To allow the employer to circumvent its statutory liability or the clear statutory scheme (like allowing it to pretend that the medical expenses were loans to the employee for which the employee is liable to reimburse to the employer) would be to allow it to act in breach of the law and is void, unenforceable and illegal.

Mr Rai supported the District Judge’s reference to another High Court case for guidance, namely the decision of Lee Chiang Theng v Public Prosecutor [2012] 1 SLR 751 (“Lee Chiang Theng”) where the scope of employers’ duties under the EFMA was discussed by V K Rajah JA (as he then was). Mr Rai submitted that the District Judge was correct in distinguishing Sun Delong on the basis that no reference to Lee Chiang Theng was apparently made by the parties in their submissions before Choo J.

Mr Rai therefore submitted that to allow recovery in the present case would be to allow the employer to infringe the provisions of the EFMA, delegate his otherwise personal and non-delegable duty and a scenario of double recovery in the event that the employer had claimed or may claim from the mandatory insurance that he had taken out. The appellant...