Selvam Raju v Camelron General Contractors and another

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 03 March 2010
• Neutral Citation: [2010] SGHC 68
• Date: 03 March 2010
• Docket Number: Originating Summons No 333 of 2008
• Published date: 04 March 2010
• Plaintiff Counsel: Perumal Athitham and P Kamala Dewi (Yeo Perumal Mohideen Law Corporation)
• Hearing Date: 20 May 2009,06 January 2009,13 January 2009,28 April 2009,03 September 2009
• Defendant Counsel: Ramesh Appoo (Just Law LLC)
• Court: High Court (Singapore)
• Subject Matter: Administrative Law

Choo Han Teck J:

This was an appeal against the decision of the Commissioner under the Workmen’s Compensation Act (Cap 354, 1998 Rev Ed) (“the Act”) refusing the Appellant’s claim for compensation for his injury. The Commissioner had ruled that the injury was not caused by an accident arising out of and in the course of his employment with the 1st Respondent. The 2nd Respondent is the 1st Respondent’s insurer. The Appellant appealed to the High Court under s 29 of the Act.

The Appellant’s claim before the Commissioner was made on the basis that he suffered an injury to his back when he was dismantling a lift motor. His report of the accident to the Ministry of Manpower stated that he had been carrying the motor with the assistance of three other workers when he heard a cracking sound in his lower back. At the hearing before the Commissioner, however, he claimed that he had injured himself when he had stretched out in order to prevent the motor from falling into the lift shaft. After hearing the Appellant’s testimony, the Commissioner produced the Appellant’s statement to the Ministry of Manpower and highlighted the inconsistencies. That statement had only been in the possession of the Commissioner and had not hitherto been available to either the Appellant or the Respondents. The Appellant maintained that the version of events he gave in oral testimony was true. The Respondents applied to impeach the Appellant’s credibility. The Commissioner found that the Appellant’s credibility was impeached on account of the material discrepancies between the reported account of the accident, the statement given to the Ministry of Manpower and the Appellant’s evidence before him. The Commissioner stated in his grounds of decision that the Appellant’s account of the accident was not corroborated by his own witness and the medical reports. It was also not put to any of the Respondents’ witnesses that they had lied when testifying that there had been no accident on the day the injury was allegedly sustained. As a result, the Commissioner found that the Appellant had failed to establish that his injury had been caused by an accident arising out of and in the course of his employment and denied his claim for compensation under the Act.

In the appeal before me, the Appellant applied for the Commissioner’s decision to be set aside as erroneous in law for three reasons: first, the Commissioner failed to apply the presumption found in s 3(6) of the Act; second, the Commissioner should not have used the Appellant’s recorded statement from the Ministry of Manpower to impeach the latter’s credit; and third, the Commissioner’s provision and use of the statement gave rise to a reasonable doubt of bias against the Appellant and amounted to conduct of the proceedings in an unfair and prejudicial manner. I shall address the third limb of the Appellant’s case first.

The Respondents’ counsel argued that allegations of bias on the part of the Commissioner must be made by way of judicial review and not appeal. This was to enable the Attorney-General to be heard at the proceedings and respond on the Commissioner’s behalf. Counsel pointed out that in all the authorities cited by the Appellant, bias was alleged in the context of judicial review: see R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256; Metropolitan Properties Co. (F.G.C.) Ltd v Lannon & Ors and R v London Rent Assessment Panel Committee, ex parte Metropolitan Properties Co. (F.G.C.) Ltd [1969] 1 QB 577; De Souza Lionel Jerome v A-G [1993] 3 SLR(R) 552; and Re Singh Kalpanath [1992] 1 SLR(R) 595. Thus, any allegation of a breach of the rules of natural justice must be raised exclusively within the judicial review process. Counsel for the Appellant disagreed. It was feared that the court would not grant judicial review remedies in cases where Parliament had already provided a specific process for appeal. Counsel for the Appellant referred to R v Epping and Harlow General Commissioners, ex parte Goldstraw [1983] 3 All ER 257, R v Secretary of State for the Home Department, ex parte Swati [1986] 1 WLR 477, and Ex parte Waldron [1986] QB 824 to support his proposition.

This apparent conflict of authorities reflects a tension between the procedural exclusivity of judicial review and statutory avenues specifically provided by Parliament. In the context of this case, it seemed to me that resolution between the two turned on a reading of the statutory provisions of the Act. Section 29(1) provides that any person aggrieved by any order of the Commissioner may appeal to the High Court; s 29(2A) states that no appeal shall lie against any order unless it involves a substantial question of law. The crucial question, therefore, is whether the question of alleged bias on the part of the Commissioner amounts to a substantial question of law. If it does, then I may hear the Appellant’s allegations via the statutory appeal route provided in s 29 of the Act; if it does not, then the Appellant’s appeal in respect of the allegation of bias must be dismissed and judicial review proceedings brought instead.

Does the question whether there has been bias on the part of the Commissioner amount to a substantial question of law? In my view, it does not. In Next of Kin of Ramu Vanniyar Ravichandran v Fongsoon Enterprises (Pte) Ltd [2008] 3 SLR(R) 105, I held that the appellant’s arguments amounted to questions of law because they related to the application of principles of agency law and presumptions of law in the statute. I found that they were substantial questions as they “[were] likely to feature in most workmen’s compensation cases...” My approach was similar to that taken in Northern Elevator Manufacturing Sdn Bhd v United Engineers (Singapore) Pte Ltd (No 2) [2004] 2 SLR(R) 494 (“Northern Elevator”), where the phrase “question of law” was defined narrowly in the context of (what was then) s 28 of the Arbitration Act (Cap 10, 1985 Rev Ed). The Court of Appeal distinguished between an error of law where the court had no jurisdiction to conduct judicial review and a question of law where it had, and stated that: 18 An opportunity arose for comment in Ahong Construction (S) Pte Ltd v United Boulevard Pte Ltd [1993] 2 SLR(R) 208. In that case, G P...