Minichit Bunhom v Jazali bin Kastari

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Andrew Phang Boon Leong JA,Steven Chong JA
• Judgment Date: 27 April 2018
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 26 of 2017
• Date: 27 April 2018

Minichit Bunhom

and

Jazali bin Kastari and another

[2018] SGCA 22

Sundaresh Menon CJ, Andrew Phang Boon Leong JA and Steven Chong JA

Civil Appeal No 26 of 2017

Court of Appeal

Damages — Special damages — Medical expenses — Tortfeasor caused injury to foreign employee — Employer paid for medical expenses under non-recourse loan agreement with foreign employee — Whether medical expenses treated differently from other heads of claim — Whether rule against double recovery precluded foreign employee from recovering medical expenses from tortfeasor

Employment Law — Employer's duties — Foreign employee injured by third party tort — Employer paid medical expenses on behalf of foreign employee — Whether employment legislation and subsidiary legislation obliged employer to pay foreign employee's medical expenses where injury caused by third party tort — Whether legislation precluded foreign employee from recovering medical expenses from tortfeasor — Employment of Foreign Manpower Act (Cap 91A, 2009 Rev Ed)

Tort — Negligence — Medical expenses — Tortfeasor caused injury to foreign employee — Whether liability to compensate for medical expenses exempted by employment legislation — Whether tortfeasor causing injury to foreign employee treated differently from tortfeasor causing injury to other persons — Whether allowing recovery of medical expenses against tortfeasor created risk of double recovery

Held, allowing the appeal:

(1) On an incontrovertible application of the compensation principle, the first respondent would have been liable to compensate the appellant for the medical expenses incurred as a result of his negligence, if the appellant had not been a work permit holder under the EFMA: at [30].

(2) The relevant conditions in the Employment of Foreign Manpower (Work Passes) Regulations 2012 (Cap 91A, Rg 2, 2009 Rev Ed) (“EFMR”) indicated a general rule that the employer of a foreign employee was to be responsible for the provision of the latter's medical treatment. However, nothing in the EFMA or the EFMR suggested that they were intended to abridge the recovery of medical expenses as between a tortfeasor and the victim: at [40] and [42].

(3) The protective policy of the EFMA and the EFMR would not be infringed if an employer paid the victim-foreign employee's medical expenses on the basis of a non-recourse loan agreement. Given the non-recourse nature of the loan, the employer had no right to enforce the loan against the victim-foreign employee if the latter could not recover any part of the medical expenses from the tortfeasor. There was no material risk that the burden of any unrecovered medical expenses might eventually fall on the victim-foreign employee: at [49].

(4) When taken in its proper context, it was clear that Lee Chiang Theng v PP[2012] 1 SLR 751 (“Lee Chiang Theng”) had no immediate relevance to the present appeal as neither the incidents of the relationship between a tortfeasor and the victim, nor the interaction between the tortious and the employment relationships, arose for consideration in that case. Further, it appeared that the parties had placed an unintended meaning on the term “non-delegable” that was used in Lee Chiang ThengENR: at [51], [54] and [57].

(5) The court in Sun Delong v Teo Poh Soon[2016] SGHC 129 correctly held that the EFMR did not preclude a victim-foreign employee from recovering the medical expenses occasioned by a third party tort from the tortfeasor. The applicability of the obligations in the EFMA and the EFMR was not dependent on the presence or absence of any third party tortious conduct: at [66] and [69].

(6) There were serious doubts about the correctness of the holding in Lim Kiat Boon v Lim Seu Kong[1980] 2 MLJ 39 (“Lim Kiat Boon”) that “gratuitous” payments by a third party to a victim were recoverable from the tortfeasor, but not “obligated” payments. In any event, Lim Kiat BoonENR could be distinguished as it applied to wages or its equivalent and not medical expenses: at [80] and [81].

(7) While the rule against double recovery was important and well established, it was not necessarily paramount in all situations. In any event, the approach taken in the present case did not offend the rule whether in relation to the victim-foreign employee or the employer. The court in granting the victim-foreign employee's claim for medical expenses against the tortfeasor would, and should as a matter of course, require an undertaking or make a direction that the victim-foreign employee was to return the recovered medical expenses to the employer: at [83] and [85].

(8) The approach in the present case would not expose the tortfeasor (or his insurer) to double liability for the medical expenses: at [87].

(9) The appellant should not be precluded from recovering interest on the medical expenses merely because the application for leave to appeal did not include a specific reference to interest. An award of interest from the date the writ of summons was filed to the date of the court's oral judgment at the standard interest rate would be a fair estimation of the opportunity cost suffered by the appellant in having been kept out of the sums to which he was entitled: at [94] and [96].

(10) Given the developments, there was no reason to reject the appellant's counsel's request for the judgment sum to be paid to him, who would in turn pay over the relevant part thereof to KPW. This was in substance aligned with the earlier direction for the appellant to pay over the medical expenses to KPW upon recovery of the same from the second respondent: at [97].

[Observation: In a situation where the victim-foreign employee was not in a financial position to bring a suit against the tortfeasor, it appeared that maintenance and champerty would not be obstacles to the provision of litigation financing by the employer, in so far as the employer would have a genuine, commercial, and substantial interest in the victim-foreign employee's enforcement of his claim against the tortfeasor: at [91].]

Case(s) referred to

ACES System Development Pte Ltd v Yenty Lily [2013] 4 SLR 1317 (refd)

Ang Eng Lee v Lim Lye Soon [1985–1986] SLR(R) 931; [1986] SLR 116 (refd)

Au Yeong Wing Loong v Chew Hai Ban [1993] 2 SLR(R) 290; [1993] 3 SLR 355 (distd)

Browning v The War Office [1963] 1 QB 750 (distd)

Donnelly v Joyce [1974] QB 454 (distd)

Grains and Industrial Products Trading Pte Ltd v Bank of India [2016] 3 SLR 1308 (refd)

Hunt v Severs [1994] 2 AC 350 (refd)

Lee Chiang Theng v PP [2012] 1 SLR 751 (distd)

Lim Hin Hock v Ong Jin Choon [1991] 1 SLR(R) 381 (refd)

Lim Kiat Boon v Lim Seu Kong [1980] 2 MLJ 39 (distd)

Lo Lee Len v Grand Interior Renovation Works Pte Ltd [2004] 2 SLR(R) 1; [2004] 2 SLR 1 (refd)

MARA, The [2000] 3 SLR(R) 31; [2000] 4 SLR 156 (refd)

MCST Plan No 3322 v Tiong Aik Construction Pte Ltd [2016] 4 SLR 521 (refd)

Ng Huat Seng v Munib Mohammad Madni [2017] 2 SLR 1074 (refd)

Ong Jin Choon v Lim Hin Hock [1988] 1 SLR(R) 559; [1988] SLR 588 (distd)

Receiver for the Metropolitan Police District v Croydon Corp [1957] 2 QB 154 (distd)

Singapore Airlines Ltd v Tan Shwu Leng [2001] 3 SLR(R) 439; [2001] 4 SLR 593 (refd)

Sun Delong v Teo Poh Soon [2016] SGHC 129 (refd)

Tan Boon Heng v Lau Pang Cheng David [2013] 4 SLR 718 (refd)

Facts

The appellant was a foreign employee holding a work permit under the Employment of Foreign Manpower Act (Cap 91A, 2009 Rev Ed) (“EFMA”). On 8 November 2013, he was travelling in a lorry driven by the first respondent when an accident occurred as a result of the first respondent's negligence, causing the appellant and others to suffer injuries.

The appellant was taken to a hospital for medical treatment. The appellant's employer at that time was KPW Singapore Pte Ltd (“KPW”). In consideration for the provision of medical care, the hospital required a written undertaking from KPW that the latter would pay all hospital expenses incurred by the appellant which KPW duly provided. Subsequent hospital bills were addressed to and paid by KPW. In total, the medical expenses amounted to $15,682.97. The sum was paid by KPW on the basis of a non-recourse loan agreement with the appellant under which the latter would claim the expenses from the first respondent and repay KPW upon recovery.

The appellant filed a claim against the first respondent seeking, amongst other things, medical expenses occasioned by the accident. Interlocutory judgment was granted in favour of the appellant. Subsequently, the second respondent, who was the first respondent's motor insurer, obtained leave to intervene in the proceedings.

At the hearing for assessment of damages before the deputy registrar (“DR”) of the State Courts, the DR declined to award the appellant any damages on the basis that a claim had already been made under the Work Injury Compensation Act (Cap 354, 2009 Rev Ed) (“WICA”). On appeal, the district judge (“DJ”) was satisfied that no claim had been made under the WICA scheme and awarded the appellant general and special damages, but disallowed the appellant's claim for medical expenses.

On appeal against the DJ's decision not to allow recovery of the medical expenses, the Judge agreed with the DJ and dismissed the appeal on the ground that the EFMA placed a non-delegable statutory duty on the employer to bear the foreign employee's medical expenses, the risk of which could not be delegated to the employee. Further, to allow the appellant to recover medical expenses would lead to double recovery for the appellant or for KPW who could make a claim on its EFMA insurance for the same sum.

In the course of preparing these grounds, the appellant's counsel and the second respondent's counsel respectively wrote in to the court and raised two issues: (a) as the appellant had left Singapore and closed his bank account, whether the judgment sum could be paid to the appellant's counsel who would in turn pay over the relevant part thereof to KPW; and (b) whether...