Saldur Rahman v Mayban General Assurance Bhd and Another

• Jurisdiction: Singapore
• Judge: Kan Ting Chiu J
• Judgment Date: 11 May 2005
• Neutral Citation: [2005] SGHC 88
• Docket Number: Originating Motion No 5 of 2005
• Date: 11 May 2005
• Published date: 11 May 2005
• Year: 2005
• Plaintiff Counsel: Lim Seng Siew (Ong Tay and Partners) and S K Kumar (S K Kumar and Associates)
• Citation: [2005] SGHC 88
• Defendant Counsel: M P Rai (Cooma and Rai)
• Court: High Court (Singapore)
• Subject Matter: Employment Law,Whether workman's claim deemed withdrawn because suit commenced,Sections 33(1), 33(2)(a) Workmen's Compensation Act (Cap 354, 1998 Rev Ed),Workman claiming compensation for injury under Act subsequently filing civil suit for damages without giving notice to Commissioner for Labour,Whether workman's civil action null for failure to withdraw claim under Act before filing action in court

11 May 2005

Kan Ting Chiu J:

1 This was an application by a workman (hereinafter referred to as “the applicant”) to set aside the decision of the Commissioner for Labour (“the Commissioner”) which refused to allow him to proceed with his claim for compensation made under the Workmen’s Compensation Act (Cap 354, 1998 Rev Ed) (“the Act”).

2 The salient facts are:

(a) the applicant was injured on 1 March 1999;

(b) a claim under the Act was made on 9 March 1999;

(c) the applicant filed District Court Suit No 798 of 2002 (“DC 798/2002”) on 27 February 2002 for damages against his employers but did not notify the Commissioner of the suit; and

(d) DC 798/2002 was deemed to have been discontinued on 3 October 2003 through inaction on the applicant’s part.

3 After the action was deemed to have been discontinued, the applicant applied to the Commissioner to proceed with his claim but the Commissioner declined.

4 The Commissioner referred to Chua Ah Beng v The Commissioner for Labour [2002] 4 SLR 854 (“Chua Ah Beng”) and held that the applicant’s claim was deemed to have been withdrawn when the applicant commenced his writ action. The Commissioner explained:

15. [I]n the case of Chua Ah Beng … the claimant … has exhausted all his remedies under common law. The claimant then wanted to return to the claim under the Act. [Tay Yong Kwang JC] rejected the attempt on the basis that section 33(2)(a) of [the Act] clearly prohibits concurrent proceedings. Tay JC held that the only logical solution was to hold that the claimant was deemed to have withdrawn his claim under the Act when he informed the Commissioner that he was going to commence an action in Court.

16. I am of the view that this case warrants the same decision as that in Chua Ah Beng. Tay JC, in ruling on section 33(1) in Chua Ah Beng, held that a claimant may make a claim under the Act if he discontinues his action before it has been determined by in [sic] any court. This is [the] logical converse of the situation in Ying Tai Plastic. Unfortunately, the common law action in this case determined as a failed action after it was deemed to be discontinued due to delay by the claimant. In Tan Kim Seng v Ibrahim Victor Adam [2004] 1 SLR 181, the Court of Appeal, in considering the purpose of O.21 R. 2(6) which governs the deemed discontinuance provision, held that the provision is to ensure that expeditious prosecution of the action by the Plaintiff or face the prospect of the action being deemed discontinued.

17. In these circumstances, I find that the claimant is not able to return to his claim under the Act given that his common law action has been determined to be a failure. Since section 33(2)(a) of the Act makes it clear that there can be no concurrent proceedings, applying Tay JC’s reasoning in Chua Ah Beng, I find that the claim under the Act is deemed to be withdrawn.

5 In Chua Ah Beng, a workman was injured in the course of his employment. A claim for compensation was filed under the Act. The workman was not satisfied with the compensation assessed and filed an action for damages against his employers.

6 Before filing the action, his solicitors informed the Commissioner of his intention and asked that the claim “be kept in abeyance until the conclusion of the civil matter”, and the Commissioner replied:

Since your client … wishes to claim damages under the Common Law in respect of the above accident, please note that this office will take no further action on this matter. Please let us know the terms of settlement under Common Law and a copy of the Court Judgment, if any, in due course. [emphasis added]

7 The action was heard and dismissed. The appeal against the dismissal met with the same result. When the workman applied to reactivate his compensation claim, the Commissioner took the position that he was not entitled to do that. The workman then applied for an order to set aside the Commissioner’s order.

8 Tay Yong Kwang JC (as he then was), who heard the application, dismissed it and held:

38 … The plaintiff is asking the court to order the Commissioner for Labour to reinstate and to assess his claim. The defendant very candidly informs me that the practice adopted thus far is to allow applications under [the Act] (such as...