MTM Ship Management Pte Ltd v Devaswarupa

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: S Mohan J
• Judgment Date: 27 July 2022
• Docket Number: Tribunal Appeal No 8 of 2021

MTM Ship Management Pte Ltd

and

Devaswarupa and others

[2022] SGHC 178

S Mohan J

Tribunal Appeal No 8 of 2021

General Division of the High Court

Admiralty and Shipping — Compensation for death of seafarer — Whether compensation paid by employer under Merchant Shipping (Maritime Labour Convention) Act 2014 (Act 6 of 2014) for death of seafarer reduced compensation payable under Work Injury Compensation Act (Cap 354, 2009 Rev Ed) — Sections 20(e) and 20(f) Work Injury Compensation Act (Cap 354, 2009 Rev Ed) — Merchant Shipping (Maritime Labour Convention) Act 2014 (Act 6 of 2014)

Employment Law — Commissioner for Labour — Right of appeal — Appeal against Commissioner for Labour's order for employer to pay work injury compensation — Whether substantial question of law involved — Section 29(2A) Work Injury Compensation Act (Cap 354, 2009 Rev Ed) — Section 58(1) Work Injury Compensation Act 2019 (Act 27 of 2019)

Employment Law — Work Injury Compensation Act — Claim for work injury compensation following death of employee — Employer objecting to Commissioner for Labour's notice of assessment — Whether Commissioner for Labour obliged to take into account objections raised out of time — Sections 25(1) and 25(2) Work Injury Compensation Act (Cap 354, 2009 Rev Ed)

Employment Law — Work Injury Compensation Act — Compensation for death of employee — Whether private settlement reached by employee's dependants with employer bar to receiving compensation — Whether Commissioner for Labour empowered to take into account private settlement in assessing compensation payable — Sections 9(1A)(b) and 33(1) Work Injury Compensation Act (Cap 354, 2009 Rev Ed)

Held, allowing the appeal:

(1) The case involved a substantial question of law, as it concerned the issue of whether the Commissioner had the power under the WICA 2009 or the WICA 2019 to take into account settlement payments when assessing the sum of compensation payable. This necessarily involved questions of statutory interpretation. The sum involved also exceeded S$1,000. The applicant therefore had a right of appeal against the Assistant Commissioner's decision, under s 29(2A) of the WICA 2009 or s 58(1) of the WICA 2019, regardless of which was the applicable legislation: at [36] and [38].

(2) The applicable legislation in the present case was the WICA 2009. The accident that resulted in Mr Gainady's death occurred before the commencement of s 84(2) of the WICA 2019, and so the WICA 2009 remained the applicable legislation by operation of that provision: at [39].

(3) The reference to the WICA 2019 in the header of the Certificate of Order was likely a clerical error. The Assistant Commissioner had not been under any misapprehension as to the powers available to him, nor had the applicant been prejudiced by the reference to the WICA 2019 in the Certificate of Order. This error therefore did not justify setting aside the Certificate of Order: at [40] and [41].

(4) The Assistant Commissioner was correct to find that he was functus officio and legally required to disregard the applicant's objection. There was no provision under the WICA 2009 that allowed the Assistant Commissioner to set aside or vary the Certificate of Order after its issuance. The wording of s 25(2) of the WICA 2009 meant that once the period for raising objections had lapsed and a Certificate of Order was issued, the Commissioner no longer possessed any discretion to consider late objections. By the time the applicant raised its objection to the Notice of Assessment, the period for raising objections had lapsed and the Certificate of Order had been issued. The Commissioner was therefore required to disregard the applicant's objection: at [44] and [46].

(5) As the appeal was before the court by way of a rehearing and involved novel questions of statutory interpretation under the WICA regime, it was fair, reasonable and in the interests of justice to consider whether the Settlement Sum should be taken into account, in deciding the appeal: at [52].

(6) There was no provision in the WICA 2009 that obliged the Commissioner to take settlement payments into account when determining the sum of compensation payable. Even if a settlement payment to a deceased seafarer's next-of-kin constituted a compensation payment under the Merchant Shipping (Maritime Labour Convention) Act 2014 (Act 6 of 2014) (“MLCA 2014”), ss 20(e) to 20(f) of the WICA 2009 did not provide that such a payment would reduce the amount of work injury compensation payable. Likewise, s 33(1) of the WICA 2009 did not bar an employee from bringing a claim under the WICA 2009 despite receiving a settlement payment in respect of the same injury: at [54] and [56].

(7) The Commissioner had the power under s 9(1A)(b) of the WICA 2009 to take settlement payments into account when determining the sum of compensation payable, if he considered it fair and reasonable to do so. This accorded with the ordinary meaning and the legislative history of the provision. The wording of s 9(1A)(b) of the WICA 2009 first appeared in the Workmen's Compensation Act (Act 25 of 1975), which was enacted to, inter alia, give the Commissioner greater responsibility and oversight over the process of quantifying compensation payable to employees. Accordingly, if there was any doubt over the interpretation of s 9(1A)(b) of the WICA 2009, the provision should be interpreted in an expansive manner, such that the Commissioner does have the power to take into account settlement payments when assessing the sum of compensation payable: at [62], [64], [65], [67] and [70].

(8) Such an interpretation of s 9(1A)(b) also accorded with the legislative intent behind the WICA regime. The WICA regime was enacted to provide an alternative remedy to common law damages. In common law claims, the principle of deductibility operated such that a settlement payment made by an employer would ordinarily be deductible from any damages assessed to be payable in respect of the same injury. None of the relevant sources suggested that the intent behind the WICA 2009 was to permit employees to avoid the principle of deductibility by default and without exception: at [74] and [76].

(9) The effect of the payment of the Settlement Sum was to reduce the amount of compensation payable by the applicant under the WICA 2009 to nil. This was a fair and reasonable outcome given that the Settlement Sum exceeded the compensation that the Commissioner had assessed to be payable by the applicant. To allow the respondents further recovery under the WICA 2009 would risk permitting double recovery, which was not the intent of Parliament in enacting the WICA 2009: at [83] and [85].

[Observation: There was no provision in the WICA 2019 that was in pari materia with s 9(1A)(b) of the WICA 2009. It may have been the case that the Commissioner's power to take into account settlement payments was subsumed under s 51(2)(a) or 54(1)(c) of the WICA 2019: at [88] to [90].

There was also no provision in the WICA 2019 that allowed or required the Commissioner to reduce the amount of compensation payable for a fatal injury, where a seaman's dependants had received compensation under the MLCA 2014 for the same. Whether there was a gap in the law and if so, how best it should be filled were questions that did not have to be answered in this case: at [92].]

Case(s) referred to

Arpah bte Sabar v Colex Environmental Pte Ltd [2019] 5 SLR 509 (folld)

Hauque Enamul v China Taiping Insurance (Singapore) Pte Ltd [2018] 5 SLR 485 (refd)

Hussain v New Taplow Paper Mills Ltd [1988] AC 514 (refd)

Kee Yau Chong v S H Interdeco Pte Ltd [2014] 1 SLR 189 (refd)

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

Pang Chen Suan v Commissioner for Labour [2008] 3 SLR(R) 648; [2008] 3 SLR 648 (refd)

Pang Chew Kim v Wartsila Singapore Pte Ltd [2012] 1 SLR 15 (refd)

Tan Cheng Bock v AG [2017] 2 SLR 850 (folld)

Williams v BOC Gases Ltd [2000] All ER (D) 422 (refd)

Facts

The applicant was the manager of a vessel and the employer of Mr Gainady Ajay Bhavani Prasad (“Mr Gainady”). The respondents were Mr Gainady's next-of-kin. Following an accident on 13 August 2020 that resulted in Mr Gainady's death, the applicant paid a sum of approximately US$144,000 to the first and second respondents as compensation pursuant to the terms of Mr Gainady's employment contract (the “Settlement Sum”). The payment of the Settlement Sum was recorded in a Deed of Receipt, Release, Discharge & Indemnity Agreement on 28 September 2020 (the “Deed”). On 26 November 2020, the respondents lodged a claim with the Commissioner for Labour (the “Commissioner”) under the Work Injury Compensation Act (Cap 354, 2009 Rev Ed) (“WICA 2009”), claiming compensation for the death of Mr Gainady.

The Commissioner issued a notice of assessment of compensation to the parties on 23 December 2020 (the “Notice of Assessment”), which stated the amount of compensation that the applicant had been assessed to be liable for. The Notice of Assessment further stated that any objections had to be raised by the parties within 14 days from the date it was served. No objection was raised by the applicant during that time. On 4 March 2021, the Assistant Commissioner issued a Certificate of Order ordering the applicant to pay the respondents compensation amounting to S$190,703.96 (the “Certificate of Order”).

On the same day and shortly after the issuance of the Certificate of Order, the applicant sent an e-mail to the Ministry of Manpower highlighting that it had reached a private settlement with the respondents, and that the Settlement Sum had been paid to the first and second respondents. The applicant was of the view that it was not liable to pay any further compensation to the respondents and requested that the Certificate of Order be withdrawn. On 24 March 2021, an officer from the Ministry of Manpower replied to the applicant's e-mail stating that...