Pang Chew Kim v Wartsila Singapore Pte Ltd

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judgment Date: 23 August 2011
• Docket Number: Originating Summons No 1251 of 2010
• Date: 23 August 2011

Pang Chew Kim (next of kin of Poon Wai Tong, deceased)

Plaintiff

and

Wartsila Singapore Pte Ltd and another

Defendant

[2011] SGHC 194

Tay Yong Kwang J

Originating Summons No 1251 of 2010

High Court

Employment Law—Commissioner for Labour—Right of appeal—Applicant appealing against decision of Commissioner for Labour—Whether there were ‘substantial questions of law’ involved in appeal—Section 29 (2A) Work Injury Compensation Act (Cap 354, 2009 Rev Ed)

Employment Law—Work Injury Compensation Act—Employee dying on overseas business trip—Employee did not appear to be working at time of death—Whether employer liable to compensate employee—Whether there was personal injury—Whether personal injury was caused by accident—Whether accident arose out of and in the course of employment—Section 3 (1) Work Injury Compensation Act (Cap 354, 2009 Rev Ed)

The applicant (‘the Applicant’) was the next-of-kin of the deceased (‘the Deceased’). The Deceased was employed as a general manager by Wartsila Singapore Pte Ltd (‘Wartsila’). He was sent by Wartsila on a working trip to Phnom Penh, Bangkok, Hanoi and Ho Chih Minh City. He was found dead in his Phnom Penh hotel shortly before a meeting that he was scheduled to attend. He was clad in shorts and an undershirt with his upper body on the bed and his legs on the floor at the end of the bed. The evidence was that at the material time he was waiting for his colleague to pick him up from the hotel and drive to the meeting venue.

The Commissioner for Labour (‘the Commissioner’) found that the Deceased's death did not arise out of and in the course of his employment with Wartsila. The Commissioner held that there was no evidence that the Deceased was involved in any work prior to his death. The Commissioner further held that and that waiting for transport could not be considered as being in the course of employment.

A preliminary issue was whether the Applicant had a right to appeal to the High Court from the Commissioner's decision. The substantive issues concerned the interpretation of s 3 of the Work Injury Compensation Act (Cap 354, 2009 Rev Ed) (‘WICA’). Specifically, s 3 (1) of the WICA stipulated that an employer would only be liable to compensate an employee for ‘personal injury’, caused by ‘accident’, ‘arising out of and in the course of employment’. It was not disputed that personal injury had been suffered. Accordingly, the issues before the court were whether, for the purposes of s 3 (1) of the WICA, (a)there was an ‘accident’; and (b)the accident ‘ [arose] out of and in the course of employment’.

Held, allowing the appeal:

(1) Pursuant to s 29 (2A) of the WICA, an appeal to the High Court from a decision of the Commissioner made under the WICA was possible only where, inter alia, a ‘substantial question of law is involved in the appeal’. As the present case clearly involved ‘substantial questions of law’, the appeal was permitted: at [16] to [21].

(2) An ‘accident’ for the purposes of s 3 (1) of the WICA would include an internal medical condition that caused an unexpected injury while the workman was carrying out his work. Although this might appear to stretch the word ‘accident’ beyond its common usage, such a liberal interpretation was justified since s 9 A of the Interpretation Act (Cap 1, 2002 Rev Ed) enjoined courts to prefer an interpretation that would promote the purpose underlying any particular legislation. In this regard, being a piece of social legislation, the WICA should be interpreted purposively in favour of employees who had suffered injury during their employment: at [23], [24], [26] and [27].

(3) In the present case the Deceased's death was, on a balance of probabilities, caused by cardiac arrest. Accordingly, his death was caused by an ‘accident’ within the meaning of s 3 (1) of the WICA: at [25].

(4)‘In the course of employment’ refers to the course of work which an employee was employed to do, as well as the natural or necessary incidents connected with that work. The process of determining whether an employee was, at the material time of suffering injury, in the ‘course of employment’, was a highly factual inquiry: at [33] to [36].

(5) The concept of being in the ‘course of employment’ had to accommodate and reflect changes in modern working life, where work was no longer confined to specific places and times: at [37].

(6) Even if leisure activities were included as part of the programme, so long as they were sanctioned by the employer, they would not amount to a break in employment. This accorded with present day working life where leisure, team-building and morale-boosting activities were part and parcel of employment: at [39].

(7) In the present case, the Deceased was in the ‘course of employment’ at the material time. The entire trip was a working trip, and there was no ‘interruption’ that might have brought the case outside the prima facie position that the Deceased was in the ‘course of employment’ at the material time. Furthermore, the fact that there was no actual work done at the material time did not mean that the Deceased could not be considered to have been in the course of employment: at [38], [40] and [41].

[Observation: It might be argued that it was not in line with the common understanding of the word ‘accident’ to include something which happened as a result of a person's ‘internal medical condition’. Furthermore, using the term ‘accident’ in s 3 (1) might lead to some problems regarding the interpretation of s 3 (5). Section 3 (5) (b) purported to exclude an employer's liability for ‘any incapacity or death resulting from a deliberate self injury ...’. It was difficult to see how a particular claim could pass through the s 3 (1) (‘accident’) gateway but subsequently be excluded by virtue of s 3 (5) (b), since a ‘deliberate self-injury’ could hardly be considered an ‘accident’ in the first place. Of course, one way to rationalise the provisions was to interpret the ‘deliberate self-injury’ component of s 3 (5) (b) as dealing with a class of cases that did not fall within s 3 (1) in the first place but if that were the case, then s 3 (5) (b) would not be necessary since there was no liability apart from s 3 (1). It might thus be better to replace the word ‘accident’ with ‘incident’ (or some other suitable term). Doing so would also obviate the need for an expansive or over liberal meaning to be given to the word ‘accident’: at [26] and [28] to [31].]

Allianz Insurance Co (Singapore) Pte Ltd v Ma Shoudong [2011] 3 SLR 1167 (folld)

Charles R Davidson and Co v M'Robb or Officer [1918] AC 304 (folld)

Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 (folld)

Joel v Morison (1834) 6 Car & P 501; 172 ER 1338 (refd)

Karuppiah Ravichandran v GDS Engineering Pte Ltd [2009] 3 SLR (R) 1028; [2009] 3 SLR 1028 (refd)

Ma Kit Ching Veronica v AG [1983] 1 HKC 470 (refd)

Ng Swee Lang v Sassoon Samuel Bernard [2008] 1 SLR (R) 522; [2008] 1 SLR 522 (folld)

NTUC Income Insurance Co-operative Ltd v Next of kin of Narayasamy s/o Ramasamy, deceased [2006] 4 SLR (R) 507; [2006] 4 SLR 507 (folld)

QBE Insurance (International) Ltd v Julaiha Bee Bee [1991] 2 SLR (R) 724; [1992] 1 SLR 406 (distd)

Selvam Raju v Camelron General Contractors [2010] 2 SLR 1113 (folld)

Shadrake Alan v AG [2011] 3 SLR 778 (refd)

Storey v Ashton (1869) LR 4 QB 476 (refd)

Whatman v Pearson (1868) LR 3 CP 422 (refd)

Work Injury Compensation Act (Cap 354, 2009 Rev Ed) ss 3 (1) , 3 (5) (b) , 3 (6) , 29 (2A) (consd) ; ss 2 (4) ,3 (5) , 29

Interpretation Act (Cap 1,2002 Rev Ed) s 9 A

N Sreenivasan and Ahmad Nizam Abbas (Straits Law Practice LLC) for the applicant

Eu Hai Meng (United Legal Alliance) for the second respondent.

Judgment reserved.

Tay Yong Kwang J

1 The applicant (‘the Applicant’) is the next-of-kin of the deceased Mr Poon Wai Tong (‘the Deceased’). She lodged a claim for compensation under the Work Injury Compensation Act (Cap 354, 2009 Rev Ed) (‘WICA’) in respect of the death of the Deceased. Wartsila Singapore Pte Ltd (‘the 1st Respondent’) was the employer of the Deceased which had obtained workmen's compensation insurance cover from India International Insurance Pte Ltd (‘the 2nd Respondent’). The 1st Respondent did not contest the present application.

2 The Deceased passed away in Cambodia on 1 September 2008 in a hotel room at around 11.00am, Cambodia time. No autopsy was performed and the death certificate registered on 2 September 2008 in Daun Penh District, Cambodia, did not contain any cause of death.

3 By a notice of assessment dated 25 May 2009, the Commissioner for Labour (‘the Commissioner’) assessed that no compensation was payable because death was not caused by an accident arising out of and in the course of employment. The Applicant lodged an objection to this notice of assessment and at the conclusion of the hearing of the matter, the Commissioner maintained the position taken in the assessment. The present application by way of this originating summons is an appeal against the Commissioner's decision.

Facts

4 The facts of this case are not in dispute. The Deceased was employed as a general manager by the 1st Respondent since 2 January 1987. As a general manager, he reported directly to the managing director of the company, one Mr Ong Ban Leong (‘Ong’). The Deceased was required in the course of his employment to work outside Singapore periodically. Ong confirmed that he had travelled many times with the Deceased on business trips.

5 Ong gave evidence that the Deceased's travelling itinerary for this particular trip included travelling to Phnom Penh, Bangkok, Hanoi and Ho Chih Minh City. Phnom Penh, Cambodia was the first stop of the business trip which was scheduled to last from 31 August 2008 to 5 September 2008. The Deceased was in Phnom Penh to attend, among other things, an anniversary dinner of Khmer Electrical Power (‘KEP’) on 31 August 2008 (as...