Mohammad Shah Jahan Bhanu v Shimizu Corporation

• Judge: Earnest Lau Chee Chong
• Judgment Date: 10 April 2013
• Neutral Citation: [2013] SGDC 152
• Citation: [2013] SGDC 152
• Docket Number: District Court Suit No. 541 of 2011
• Published date: 22 August 2013
• Hearing Date: 15 March 2012,16 March 2012,20 February 2013,10 April 2013,23 May 2012,20 March 2013,27 February 2013
• Plaintiff Counsel: James Bahadur Masih (M/s James Masih & Company)
• Defendant Counsel: Eu Hai Meng (United Legal Alliance LLC)
• Court: District Court (Singapore)

District Judge Earnest Lau: Executive Summary

In this case, the Plaintiff (P) sued the Defendant employer (D) for aggravating a pre-existing disease known as hidradenitis suuprativa (HS). D conceded that they acted in breach of duty to P. The only issue was whether their breach was the cause of P’s injury. According to the undisputed expert evidence, 4 possible medical causes exist. The experts testified that D’s breach only exposed P to one possible cause (sweating). In this respect, P mounted 3 arguments. First, he claimed D’s breach was the “but for” cause (i.e. directly caused or materially contributed to the injury). Second, P relied on a less stringent causation test first introduced in the English case of Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 (the Fairchild exception). Under the Fairchild exception, P argued that D materially contributed to the risk of P’s injury, and was thus liable. Third, P claimed there was causation as a matter of “common sense”. After hearing both sides, I dismissed P’s claim with costs. I was of the view that P failed to prove “but for” causation, and that the Fairchild exception does not apply in this situation. I also did not think an independent “common sense” causation test exists in law. Dissatisfied with my judgment, P has filed an appeal. I now provide my full written grounds.

The Agreed Facts

These are the facts agreed by the parties: From November 2008 to February 2009, P was employed by D as a safety supervisor in a construction project at Pulau Ular called the “Shell ECC Project”. On 27 November 2008, P sought treatment at Tan Teoh Clinic & Surgery (TTCS) for “painful infected [hidradenitis suuprativa or HS] with abscess [at his] right axilla” (Plaintiff’s Bundle of Documents (PD) 28). His doctor was Dr Tan Chai Lee (PW2). She treated P with wound dressing and anti-biotic medication. TTCS also issued P a medical certificate (MC) no. 099570 (PD1) certifying him unfit for work on 27 November 2008 and “fit for light duty” from 28 November 2008 to 4 December 2008. On 28 November 2008, P returned to work at the Shell ECC Project. He informed his supervisor one Jumadi Juki (Jumadi) that his MC gave him 7 days’ light duty. Jumadi, however, insisted that P performed his normal duties. P duly complied. In December 2008, P sought medical attention on a number of occasions. Each time, he obtained similar MCs. Whenever P returned to work with an MC recommending light duties, Jumadi invariably forced P to do normal duties. These are the particulars of his medical visits. On 1 December 2008, P visited Toa Payoh Polyclinic (TPC) for his abscess (PD31). TPC issued P a medical certificate no. PG80041277 (PD5) excusing him from work on 1 December 2008 and “fit for light duty” from 2-8 December 2008. On 11 December 2008, P visited TTCS again. TTCS issued P a medical certificate no. 099638 (PD3) stating he is unfit for work from 11-12 December 2008. On 15 December 2008, P visited TTCS again. TTCS issued P a medical certificate no. 099404 (PD2) stating he is unfit for work from 15-16 December 2008 and “fit for light duty” from 17-21 December 2008. On 20 December 2008, P visited TPC with body ache and a discharging lesion on his right armpit. TPC issued P a medical certificate for 20 December 2008 and light duty from 21-25 December 2008 (PD 31). On 23 December 2008, P visited TTCS again. TTCS issued P a medical certificate no. 100644 (PD4) stating he is unfit for work on 22 December 2008. On 26 December 2008, P visited TPC for “persistent discharge in his right axilla that was not better with treatment”. P was referred to Tan Tock Seng Hospital General Surgery for “fistula in his right axilla” (PD 32). TPC issued P a medical certificate no. PG80043605 (PD6) excusing him from work on 26 December 2008 and “fit for light duty” from 26 December 2008 to 1 January 2009. On 31 December 2008, P visited TTCS for “an infected discharging [HS] both axillae, the new lesion, one slightly higher up than the old one”. P then went to TTSH for saucerisation, which is a surgical excavation of tissue to drain the infected area. Thereafter, TTSH referred P back to TTCS for wound dressing every other day until 2 February 2009, which was the date TTCS last saw him (PD 29).

In the circumstances, these are the short particulars of P’s claim: Jumadi wrongfully coerced P to perform normal duties instead of light duties for 26 days (i.e. from 28 November 2008 to 4 December 2008, 2-8 December 2008, 17-21 December 2008, and 26 December 2008 to 1 January 2009). Arising from Jumadi’s conduct, D became vicariously liable for breach of duty of care owed to P. By assigning P normal duties, D exposed him to hot working conditions which made him perspire more than he would if he was on light duties. This excessive sweating aggravated the infection throughout December 2008. Hence, D’s breach caused the aggravated infection.

At the trial submissions stage, both counsels also agreed on the following position: D breached their duty of care to P. P would sweat more if he performed normal duties over light duties. Medical science recognized there are many possible risk factors that trigger or aggravate HS. This includes excessive sweating, smoking, obesity, genetics and gender. Some factors carry more weight. For instance, women and obese people are more prone to developing HS. Medical science, however, cannot determine what is the forensic cause of HS (or its aggravation).

The Plaintiff’s Arguments

P’s counsel then submitted that sweating was the probable cause of injury. He drew this inference from the following arguments: There was evidence of P sweating excessively during December 2011. D on the other hand led no evidence to show that P was genetically pre-disposed to develop HS. There was also no evidence how much P smoked or how his weight contributed to HS. From January 2009 to April 2009, P did not work in a hot and sweaty environment. In the circumstance, he did not perspire excessively, and did not contract HS. Dr Tan Chai Lee (PW2) (the treating doctor) prescribed light duties for P. PW2 would not have given P light duties if she did not think sweating posed the greatest risk. Dr Tan Ern Yu (PW4) stated in her written medical report (Plaintiff’s Bundle of Documents PD 27) “excessive sweating can contribute to [HS]. Therefore, since the patient works at the construction site where he is exposed to the sun for prolonged periods, this can result in excessive sweating which can aggravate the condition”. By doing so, she also must have thought sweating was the probable cause.

P’s counsel further submitted that causation here would be satisfied under any one of 3 legal tests, namely (a) the traditional “but for” test; (b) the less stringent Fairchild exception; and (c) a “commonsensical approach to causation in place of the ‘but for’ test” which P’s counsel claimed was established in Sunny Metal & Engineering Pte Ltd v Ng Khim Ming Eric [2007] 3 SLR(R) 782. I will deal with the law on causation later. But first I should like to address P’s submissions on the evidence.

The Evidence

I did not accept P’s counsel’s submission that both doctors considered sweating as the probable cause. This contention goes against his witnesses’ evidence. PW2 and PW4 refused to single out sweating as the probable cause because it was scientifically impossible to do. In other words, science has no explanation how these risk factors trigger the onset of HS or its aggravation. As for P, I accept that genes and gender can be discounted in his case. Granted, sweating is a factor. But so too is smoking and body weight. It was not disputed that P smokes, and PW4 testified in court that P was more at risk from his own body weight than from sweating. In addition to this, she also identified the natural progression of the disease as a fourth possible cause.

Examination of PW4 (on the medical cause of HS)

Ct: Your evidence is still that a hot and sweaty environment causes sweating which in turn contributes to the risk of HS? A: Yes. Ct: Would you be able to comment in evidence whether there is a slight risk, moderate risk or high risk? A: No. I think it is difficult. Ct: Explain why? A: There are many factors that contribute to HS. They can all contribute but they are not the specific cause of it. Everybody sweats but not everyone who sweats get HS. Why do some develop HS and some don’t? We still don’t know. Ct: Would someone who doesn’t sweat be able to get HS? A: You can. Ct: How is that possible? A: Other factors contribute. We believe some people have a genetic pre-disposition to develop HS. Hormones can also influence HS. Women get more than men. Smoking and obesity can trigger HS. All I can say is that sweating is not the definitive cause. It can trigger it. Ct: So sweating is a possible cause? A: Yes. Ct: In your experience and knowledge, what groups of people are more prone to developing HS? A: Women. People who are obese. Ct: Smokers? A: Women and obese people. Ct: So gender and obesity as factors are weighed in your opinion higher than smoking? A: Yes. Ct: And also sweating? A: Yes. Ct: So looking at P, you would consider him more prone to HS by virtue of his obesity? A: Yes. His body weight.

(Later - on what caused the worsening infection)

Ct: The existing claim is that on 27/11/2008, P contracted HS. P is not blaming the company for this onset of HS. What he is saying is that this HS deteriorated or worsened to the point that it needed surgery. Can you explain how such a deterioration can occur? A: The infection may not be adequately treated or cured by antibiotics alone. If antibiotics do not work, the infection can get worse. There can be pus collection. This will need surgery. Ct: ...