Pang Chen Suan v Commissioner for Labour

• Jurisdiction: Singapore
• Court: Court of Three Judges (Singapore)
• Judge: Chan Sek Keong CJ
• Judgment Date: 28 May 2008
• Neutral Citation: [2008] SGCA 22
• Citation: [2008] SGCA 22
• Subject Matter: Sections 11, 33 Workmen's Compensation Act (Cap 354, 1998 Rev Ed),Section 11(4) Workmen's Compensation Act (Cap 354, 1998 Rev Ed),Administrative Law,Workman withdrawing timely compensation claim to commence common law action but subsequently reverting to claim,Whether limitation period applicable to bar claim,Whether common law action or compensation claim can be suspended so that the other may proceed,Judicial review,Employment Law,Whether concept of reasonable cause in making compensation claim after limitation period a question of fact or law,Ambit,Whether reasonable cause was shown to excuse late claim
• Defendant Counsel: David Chong, Janice Wong and Kevin Lim (Attorney-General's Chambers)
• Published date: 06 June 2008
• Plaintiff Counsel: Michael Hwang SC and Katie Chung (Michael Hwang) and Ramasamy Chettiar (ACIES Law Corporation)
• Docket Number: Civil Appeal No 91 of 2007
• Date: 28 May 2008

28 May 2008

Chan Sek Keong CJ (delivering the grounds of decision of the court):

Introduction

1 The appellant was a workman who was injured in an explosion at his employer’s premises. He made a claim for workmen’s compensation under the Workmen’s Compensation Act (Cap 354, 1998 Rev Ed) (“the Act”), but withdrew the claim to commence a common law action. Subsequently, he discontinued the common law action and made a claim for workmen’s compensation again. The new claim for workmen’s compensation was made outside the statutory time limit of one year (“the limitation period”) applicable to claims under the Act. The Commissioner for Labour (“the Commissioner”) rejected the new claim on the ground that the workman had failed to show reasonable cause for not making his claim within the limitation period.

2 The workman applied to the High Court for leave for judicial review of the Commissioner’s decision, but the judge below (“the Judge”) refused to grant leave (see Pang Chen Suan v Commissioner for Labour [2007] 4 SLR 557). The workman appealed to this court. At the conclusion of the hearing, we allowed the appeal. We now give our full reasons for allowing the appeal.

Background

3 On 13 January 2004, an explosion occurred at a factory at Toa Payoh Industrial Park. The factory belonged to D-Sign Advertising, a sole proprietorship carrying on the business of making signboards. At that time, one of the employees was carrying out hot works with an oxygen gas cylinder. The appellant, Pang Chen Suan (“Pang”), was employed as a supervisor with D-Sign Advertising. This explosion caused the deaths of Pang’s employer, the employer’s wife and two other persons. Several others, including Pang, sustained serious injuries. Pang suffered fractures of his leg, lacerations and burns on his left forearm. He underwent surgery five times and was found to have 18% permanent disability.

4 Pang made a claim for workmen’s compensation under the Act (“the Compensation Claim”) on 5 March 2004. On 17 August 2004 (seven months after the accident) Pang withdrew the Compensation Claim in order to commence a common law action against his deceased employer. He filed a writ in the High Court on 27 December 2004 (“the Writ”) within a year after the accident, but the Writ could not be served on the estate of the deceased employer as letters of administration had not been extracted by the personal representatives. As a result, the validity of the Writ had to be extended for service up to 20 December 2005.

5 At a coroner’s inquiry held on 15 September 2005 into the accident, the State Coroner recorded a verdict of misadventure. In the course of the inquiry, he made observations which suggested that the manufacturers of oxygen gas cylinders could be at fault in not complying with blow-down procedures, when installing oxygen into the tanks, to rectify any contamination in the tanks. Pang’s lawyers took the view that the Coroner’s observations would make it difficult for Pang to prove negligence against his employer.

6 Another prior unrelated event also gave Pang’s solicitors reason not to proceed under the common law. In a letter dated 8 October 2004, the employer’s insurers, NTUC Income, denied liability on the ground that the policy did not cover the carrying out of hot works at D-Sign Advertising’s factory. In these circumstances, and coupled with the fact that the deceased employer had left behind two young children, Pang decided not to proceed with his action which, if he had succeeded, would only result in the estate of his employer being personally liable in damages for his injuries. For all these reasons, Pang allowed the Writ to lapse on 20 December 2005.

7 On 12 January 2006, Pang wrote to the Chief Inspector of Factories (“the Chief Inspector”) at the Ministry of Manpower (“MOM”) for a copy of the investigation report. The Chief Inspector replied on 21 February 2006 and, based on legal advice, rejected Pang’s request for the investigation report. This was in spite of the fact that the Chief Inspector had, in a letter dated 9 December 2004, stated that the investigation report could only be released to Pang when all “outstanding legal actions had been concluded”. On 3 April 2006, Pang applied to the Commissioner to proceed with the Compensation Claim, some two years and three months after the explosion. On 3 May 2006, the Commissioner, in a letter signed by the head of the claims management section, replied as follows:

We refer to the letter dated 03/04/2006 from your former solicitors, Acies Law Corporation, stating your wish to claim workmen’s compensation.

2 Section 11(1) of the Workmen’s Compensation Act states that a claim for workmen’s compensation has to be made within one year from the date of the accident. We regret to inform you that, as you had made an expressed withdrawal of your workmen’s compensation claim on 27/08/2004 through your former solicitors, Ms Jeanny Ng, the one-year time bar applies. You are precluded from reinstating the workmen’s compensation claim unless you are able to provide reasons for this late submission.

3 We also wish to inform you that the institution and subsequent discontinuation of your common law action cannot be accepted as a reasonable cause for late submission of claim.

8 On 10 July 2006, Pang’s solicitors replied to the Commissioner and gave the following reasons for the late submission:

(a) Pang’s serious injuries required medical treatment for more than a year;

(b) the common law action was commenced within one year from the date of accident to preserve Pang’s right to workmen’s compensation, as required by s 33(3) of the Act;

(c) the employer’s liability was unclear until the coroner’s inquiry, which took place more than 20 months after the explosion;

(d) the verdict of misadventure at the inquiry and MOM’s refusal to release the investigation report made it difficult for Pang to prove liability at common law;

(e) whilst the Act precluded double recovery, the Act provided compensation as an alternative remedy if the common law action was dismissed, so long as the common law suit was brought within a year of the incident causing the injury; and

(f) the Commissioner had allowed the claim of Pang’s colleague, Ms Tan Ai Lam (“Tan”), to proceed in similar circumstances. The sequence of events in Tan’s claim for workmen’s compensation was as follows:

(i) the claim was made on 13 January 2004;

(ii) the claim was withdrawn on 21 December 2004;

(iii) a writ was filed on 27 December 2004, its validity was extended to 27 June 2005 and it expired on 27 January 2006 without having been served;

(iv) Tan wrote to the Commissioner to proceed with her claim for workmen’s compensation on 27 February 2006;

(v) the Commissioner directed NTUC Income to effect payment of her claim.

9 On 18 August 2006, Pang’s solicitors had to send a reminder in order to elicit a reply from the Commissioner who, after apologising for the delay in replying, said in a letter dated 7 September 2006:

After careful consideration, we regret the reasons you have provided cannot be accepted as a reasonable cause for late submission of workmen’s compensation claim.

This reply left Pang with no choice but to commence judicial review proceedings against the Commissioner.

Proceedings in the High Court

10 On 22 November 2006, Pang applied to the High Court for leave for judicial review of the Commissioner’s decision as follows:

(a) for a quashing order to quash the decision of the Commissioner barring Pang from claiming compensation and refusing to assess the Compensation Claim; and

(b) for a mandatory order directing the Commissioner to reinstate Pang’s case and to assess the Compensation Claim.

11 In the High Court, the Judge dismissed Pang’s application for the following reasons:

(a) Firstly, as Pang did not assert any illegality or impropriety on the part of the Commissioner, the only possible ground to impugn the Commissioner’s decision was that of irrationality. In that regard, the Commissioner’s decision could not be said to be irrational such that no reasonable person would come to that decision.

(b) Secondly, the Commissioner’s decision was consistent with a long line of authorities that Pang’s actions did not constitute reasonable cause under s 11(4) of the Act, viz, Prophet v Roberts (1918) 11 BWCC 301, Lingley v Thomas Firth and Sons, Limited [1921] 1 KB 655 (“Lingley”) and L A Sheridan, “Late National Insurance Claims: Cause for Delay” (1956) 19 MLR 341.

(c) Lastly, the Commissioner’s decision to accept Tan’s claim for compensation was not discriminatory against Pang as her claim had been made final under s 24(3) of the Act even before she withdrew her claim on 21 December 2004.

Proceedings on appeal

12 On appeal before us, Pang contended that the Judge’s refusal to grant leave was wrong on the following grounds:

(a) the Commissioner’s decision was an error of law as Pang’s actions constituted reasonable cause for failure to make a claim within the requisite one-year period under s 11(4) of the Act;

(b) Pang had a legitimate expectation that his claim would be allowed by reason of Tan’s case (see [8] above) since in the case of G Elangovan v Applied Movers & Trading Pte Ltd District Court Suit No 2065 of 2004, the Commissioner had admitted to the court that a workman was entitled to withdraw his claim for workmen’s compensation at any time until he had received the compensation sum awarded and signed the letter acknowledging receipt of the compensation.

(c) the Commissioner was irrational in that he failed to give any reason for refusing to accept the Compensation Claim.

Before we consider these grounds, it is desirable that we first discuss the legislative object of the Act to facilitate a better understanding of our reasons why we held that the Commissioner’s decision was wrong both in law and in his understanding of the policy of the Act.

Object of the Act

13 Under the common law, a workman who has suffered injuries by an...