Tan Lip Tiong, Rodney as Deputy for Tan Yun Yeow v The Commissioner of Labour and another matter

JurisdictionSingapore
CourtHigh Court (Singapore)
JudgeQuentin Loh J
Judgment Date02 April 2015
Neutral Citation[2015] SGHC 87
Citation[2015] SGHC 87
Defendant CounselViveganandam Jesudevan, Lim Kah Hwee Nicholas and Ang Ming Sheng Terence (Attorney-General's Chambers),Anparasan s/o Kamachi and Tan Hui Ying Grace (KhattarWong LLP)
Date02 April 2015
Subject MatterJudicial review,Employment Law,Work Injury Compensation Act,Administrative Law
Plaintiff CounselNoor Mohamed Marican and Ramasamy Chettiar (Marican & Associates)
Hearing Date03 March 2015
Docket NumberOriginating Summons No 265 and 918 of 2014
Published date27 April 2016
Quentin Loh J:

These proceedings arise from horrific injuries suffered by a workman who went into a coma, and involves his right, exercised through his elder brother, to pursue his claim for damages at common law. It is contended that his right to do so is barred because he opted for and obtained an order for compensation under the Work Injury Compensation Act (Cap 354, 2009 Rev Ed) (“the Act”).

Originating Summons No 265 of 2014 (“OS 265”) was filed on 21 March 2014 by Tan Lip Tiong Rodney (“Rodney Tan”) as the court appointed deputy under the Mental Capacity Act (Cap 177A, 2010 Rev Ed) (“Mental Capacity Act”) for Tan Yun Yeow (“the Injured Employee”). Rodney Tan seeks to bring judicial review proceedings under O 53 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“Rules of Court”) to quash the decision of the Commissioner of Labour (“the Commissioner”) made on 2 January 2014 that the Injured Employee had made a valid claim for compensation under the Act.

Originating Summons No 918 of 2014 (“OS 918”), filed on 30 September 2014, is brought in the name of SBG Starkstrom Pte Ltd (“the Employer”) by its insurer, MSIG Insurance (Singapore) Pte Ltd. The Employer seeks to bring judicial review proceedings to quash a later decision of the Commissioner made on 1 July 2014 that the Injured Employee had not made a valid claim for compensation under the Act. The Employer also seeks a declaration that the notice of assessment issued by the Commissioner dated 21 June 2010 (“the Notice of Assessment”) was validly issued.

Counsel are agreed that these proceedings involve the following issue: Whether a mentally incapacitated employee’s next-of-kin, who has not been appointed a deputy under the Mental Capacity Act, can nonetheless make a claim under the Act on behalf of that employee?

Background

The facts in OS 265 and OS 918 are undisputed. The Injured Employee was employed as an engineer by the Employer at the material time. On 19 March 2009, the Injured Employee was involved in an electrical explosion and slipped into a coma as a result.1 The Injured Employee suffered severe burns involving his face, anterior trunk and bilateral upper limbs. The medical report states that his treatment was complicated by multi-resistant acinetobacter baumanii wound infection, septicaemia and septic shock. Kidney failure developed which required renal replacement therapy from 26 March to 29 April 2009. Right lower lobe pneumonia followed and he suffered respiratory arrest on 26 March 2009. Tracheostomy was performed on 29 April 2009. The Injured Employee was comatose for slightly over a year.2 In April 2010, he was assessed as having a reduced conscious level and able to only obey half commands and perform single step commands. Although he is making slow progress, his residual cognitive function is insufficient to benefit from intensive rehabilitation. He was considered a mentally disordered person of unsound mind and incapable of managing his financial and personal affairs by the Singapore General Hospital.

While the Injured Employee was in hospital, the Employer filed an i-Notification under the Act on 26 March 2009 notifying the Commissioner of the accident.3 A standard form letter was sent to the Injured Employee on 2 April 2009 asking whether he wished to make a claim under the Act. This letter enclosed an application form to be filled in and returned in the event the Injured Employee wished to make a claim. On 11 June 2009, the Employer wrote to the Commissioner stating that the Injured Employee was still hospitalised and had not regained consciousness.

On 22 January 2010, M/s Marican & Associates (“Marican”) wrote to the Commissioner to inform her that Marican represented Rodney Tan, the brother of the Injured Employee, and that Rodney Tan was given a power of attorney by the Injured Employee’s wife, Mdm Lim Davy.4 I was informed by counsel that the Injured Employee’s wife was from Vietnam, knew very little English and hence left her eldest brother-in-law to deal with matters in relation to her husband.

On 27 April 2010, the Commissioner received a medical report from the Singapore General Hospital confirming that the Injured Employee was of unsound mind and incapable of managing himself or his affairs.5 The Commissioner then sought confirmation from Marican as to whether the Injured Employee’s next-of-kin wished to claim compensation under the Act on behalf of the Injured Employee.6

Marican replied in a letter dated 20 May 2010 that “the next of kin … wishes to claim compensation for employee [sic] under the [Act]”7 (“the 20 May 2010 Letter”).

Based on the 20 May 2010 Letter, the Commissioner issued the Notice of Assessment pursuant to s 24(2) of the Act and addressed it to Marican by way of a letter dated 14 June 2010. The Commissioner assessed that the Injured Employee was entitled to $225,000 in compensation, the maximum sum allowed under the Third Schedule of the Act. In the letter dated 14 June 2010, the Commissioner noted that the Injured Employee was mentally incapacitated, and that under the law, a person can only act for the injured employee’s estate if he/she has obtained a court order for the Committee of the Person and Estate of the injured employee. The Commissioner advised Marican to apply for such a court order.8 The Commissioner’s letter was also accompanied by, amongst other documents, an “Authority to Claim” form.9 The form requires the person claiming on behalf of the employee to declare that he/she has been “appointed vide a Court Order … as the Committee of the Person and Estate of [the injured employee]”. It bears noting that although the Injured Employee’s claim was made after the one year limitation period for making a claim under the Act, the Commissioner lifted the limitation on the basis that there was a reasonable cause for the delay.10

I pause here to note that when the Mental Capacity Act came into force on 1 March 2010, the practice of appointing a Committee of the Person and Estate under the Mental Disorders and Treatment Act (Cap 178, 1985 Rev Ed) to manage the personal welfare and financial matters of a person who has become mentally incapacitated was replaced with that of appointing a deputy under the Mental Capacity Act.

In response to the Commissioner’s letter, Marican wrote to the Commissioner on 23 June 2010 stating that the Injured Employee lacked the capacity to make the decision whether to accept or reject the compensation assessed by the Commissioner, and that Marican was taking instructions from the Injured Employee’s next-of-kin. Marican also requested that the Commissioner keep the Notice of Assessment in abeyance in order to stop the time required under the Act to file an objection from running.11 The Commissioner did not reply to this letter as she was of the opinion that she had no express power under the Act to hold the Notice of Assessment in abeyance.12 However, as the Commissioner had not received any forms from Marican, she sent a reminder on 12 November 2010 repeating what she stated in her letter of 14 June 2010.13 There was no reply to this letter from Marican.

Almost two years later, Rodney Tan was appointed by the court as the deputy of the Injured Employee pursuant to the Mental Capacity Act on 23 August 2012. The court order expressly conferred authority on Rodney Tan to, inter alia:14 instruct lawyers to make such claim against the Employer or such parties as Rodney Tan, on legal advice, deems necessary and to commence legal proceedings under common law; if the common law claim is withdrawn or dismissed, obtain such compensation as assessed by the Commissioner or the court under the Act; give instructions to the Injured Employee’s lawyers in respect of such a claim and to accept any settlement that Rodney Tan considers reasonable as advised by lawyers appointed by Rodney Tan; and apply monies belonging to the Injured Employee from whatever source including any compensation monies or damages to pay legal fees and other related costs and expenses incurred for the purpose of making the said claim.

Upon receiving a copy of the court order appointing Rodney Tan as deputy, the Commissioner wrote to Marican on 29 October 2012 to check if Rodney Tan “wishes to claim compensation for the deceased”.15 According to the Commissioner, this choice of words was a mistake on her part as she had intended to ask whether Rodney Tan “wished to receive the compensation on behalf of the Injured Employee”.16 I also note that although the Commissioner referred to the Injured Employee as “the deceased” in her letter dated 29 October 2012, the Injured Employee is still alive at the time of this application.

At this point, Rodney Tan appeared to have changed his mind about making a claim under the Act on behalf of the Injured Employee. Marican replied to the Commissioner on 7 November 2012, stating that they needed a copy of the Commissioner’s investigation report in order to “consider whether to pursue [a claim] under [the Act]”.17 On 28 February 2013, Marican wrote to the Commissioner stating that the Injured Employee did not make an application for compensation under the Act and that the Notice of Assessment was invalid.18 The Commissioner, however, was of the opinion that the Notice of Assessment...

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2 cases
  • SGB Starkstrom Pte Ltd v Commissioner for Labour
    • Singapore
    • Court of Three Judges (Singapore)
    • 21 April 2016
    ...as described in the judgment below (Tan Lip Tiong, Rodney as Deputy for Tan Yun Yeow v The Commissioner for Labour and another matter [2015] 3 SLR 604) (“the Judgment”). The Injured Employee was employed by the appellant when he was involved in a serious workplace accident on 19 March 2009.......
  • SGB Starkstrom Pte Ltd v Commissioner for Labour
    • Singapore
    • Court of Three Judges (Singapore)
    • 21 April 2016
    ...as described in the judgment below (Tan Lip Tiong, Rodney as Deputy for Tan Yun Yeow v The Commissioner for Labour and another matter [2015] 3 SLR 604) (“the Judgment”). The Injured Employee was employed by the appellant when he was involved in a serious workplace accident on 19 March 2009.......

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