Yang Dan v Xian De Lai Shanghai Cuisine Pte Ltd

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 25 November 2010
• Neutral Citation: [2010] SGHC 346
• Plaintiff Counsel: Harvindarjit Singh Bath (Hoh Law Corporation)
• Docket Number: District Court Suit No 4289 of 2009 (Registrar’s Appeal No 98 of 2010)
• Date: 25 November 2010
• Hearing Date: 11 August 2010,22 October 2010,24 November 2010,20 September 2010
• Subject Matter: Workmen's Compensation Act,Employment Law
• Published date: 05 April 2011
• Citation: [2010] SGHC 346
• Defendant Counsel: Ooi Oon Tat (Wong Alliance LLP)
• Court: High Court (Singapore)
• Year: 2010

Woo Bih Li J: Background

The Workmen’s Compensation (Amendment) Act (Act 5 of 2008) (“Amendment Act”) made amendments to the Workmen’s Compensation Act (Cap 354, 1998 Rev Ed) (“WCA”). One of the amendments was to rename WCA as the “Work Injury Compensation Act”. The amended and renamed Act, the Work Injury Compensation Act (Cap 354, 2009 Rev Ed) (“WICA”), came into force on 1 April 2008 (see Workmen’s Compensation (Amendment) Act (Commencement) Notification 2008 (S 164/2008)). Under s 41 Amendment Act, some provisions of WICA apply to injuries occurring before the coming into force of WICA.

Under WICA, an employee may sue in court for damages under common law (“General Law Claim”), even if the employee fails in his claim for compensation under WICA, provided that certain conditions are satisfied. WCA also has provisions dealing with the situation of a workman failing in his claim for compensation under WCA and then making a General Law Claim. I will refer to a claim for compensation under either WICA or WCA as a “Compensation Claim”.

The case before me is governed by a mixture of WICA and WCA provisions. I have to decide whether the respondent, Yang Dan, who received an assessment of zero incapacity in his Compensation Claim is allowed to subsequently make a General Law Claim on the facts before me.

Facts

The respondent was employed by the appellant, Xian De Lai Shanghai Cuisine Pte Ltd, as a chef. On 13 December 2006, the respondent was injured in an accident (“the Accident”) in the course of his employment as a chef. The respondent was using a handheld rotary grinder to sharpen kitchen knives and a saw. The grinding disc of the rotary grinder broke and a piece flew into the respondent’s face, injuring him.

In December 2007, the respondent made a Compensation Claim. On 21 December 2007, Dr Ng Siew Weng (“Dr Ng”) of the Singapore General Hospital issued a medical report entitled “Medical Report for Workmen’s Compensation (Initial Assessment)” (“the Medical Report”). In that report, Dr Ng recommended that “zero %” was to be awarded for permanent incapacity. The Medical Report stated that the Guide to the Assessment of Traumatic Injuries and Occupational Diseases for Workmen’s Compensation, 5th Ed (“the Guide”) issued by the Ministry of Manpower was to be used for the medical assessment. According to the Guide, a medical assessment is only required for permanent incapacity and not for temporary incapacity (see the Guide at 6).

On 17 January 2008, the Commissioner for Labour (“the Commissioner”) issued a Notice of Assessment of Compensation which assessed that the respondent had no permanent incapacity resulting from accident arising out of and in the course of employment.

The respondent did not serve any notice of objection in the assessment. On the other hand, it appears that the insurer of the appellant did so on the basis that its policy did not cover the date of the Accident. The insurer’s objection was unnecessary in the circumstances as the assessment was for no permanent incapacity. In any event, presumably as a result of the insurer’s objection, a pre-hearing conference was held on 6 May 2008. At that conference, both the respondent and the appellant accepted that there would be zero compensation.

On 7 May 2008, the Commissioner issued a Certificate of Order made under WICA stating that by consent, the respondent’s permanent incapacity was assessed to be zero percent for his Compensation Claim. The Certificate of Order referred to reg 11 Work Injury Compensation Regulations (S 165/2008) (“WICR”). WICR came into force on 1 April 2008 (see reg 1 WICR). Regulation 11 WICR provides, inter alia, for the form to be used for an order made by the Commissioner. I should add that s 25B(5) WICA allows the Commissioner to record any settlement reached by the parties at a pre-hearing conference and to make an order to give effect to the settlement. As I explain below, s 25B WICA applies retrospectively to injuries occurring before 1 April 2008 (see s 41(2) Amendment Act).

Nineteen months later, on 7 December 2009, the respondent’s solicitors wrote to the Commissioner requesting to withdraw the respondent’s claim for compensation. The Commissioner replied on 24 December 2009 that the respondent’s claim could not be withdrawn because an order had been made in satisfaction of the Compensation Claim after a pre-hearing conference dated 6 May 2008.

On 9 December 2009, the respondent commenced this action against the appellant in the District Court for damages, claiming that the appellant breached its common law and statutory duties.

On 30 December 2009, the appellant applied to strike out the respondent’s action under O 18, r 19 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) on the ground that the respondent could not maintain this action in the light of the Commissioner’s order dated 7 May 2008. A Deputy Registrar struck out the respondent’s action on 20 April 2010. The respondent appealed. Leslie Chew DJ (the “District Judge”) allowed the appeal on 3 June 2010 (see Yang Dan v Xian De Lai Shanghai Cuisine Pte Ltd [2010] SGDC 237 (“Yang Dan”)).

The governing provisions of WCA and WICA

As stated above, the present case is governed by a mixture of WCA and WICA provisions. I should identify the relevant provisions and describe them in some detail before considering the District Judge’s decision.

The provisions of WICA which are applicable in the present case

Section 41 Amendment Act sets out transitional and savings provisions to deal with the transition from WCA to WICA. Section 41 Amendment Act provides as follows:

Transitional and savings provisions 41. —(1) Subject to subsections (2) to (5) and any regulations made under subsection (6), the provisions of the principal Act as amended by this Act shall not apply with respect to claims for compensation, and any rights and obligations, in respect of personal injury caused by accidents happening before the date of commencement of this section, and the provisions of the principal Act in force immediately before the commencement of this section shall continue to apply with respect to those claims for compensation and rights and obligations as if this Act had not been enacted.

(2) Sections 9, 11 (a) and (b), 15, 19, 21, 25, 26, 27, 28 (a), 30 (b), 32 and 35 of this Act shall apply with respect to claims for compensation, and any rights and obligations, in respect of personal injury caused by accidents happening before the respective dates of commencement of those sections.

(3) Sections 13 (b), 23 (a), (b), (c), (e) and (f), 24 and 33 of this Act shall apply with respect to claims for compensation, and any rights and obligations, in respect of personal injury caused by accidents happening before the respective dates of commencement of those sections except where a claim for compensation in respect of the injury has been made before the respective dates of commencement of those sections (referred to in this subsection as an excepted claims); and the former provisions of the principal Act in force immediately before the commencement of those sections shall continue to apply to those excepted claims as if those sections had not been enacted.

(4) Sections 23 (d), 28 (b) and 30 (c) of this Act shall apply with respect to claims for compensation, and any rights and obligations, in respect of personal injury caused by accidents happening before the respective dates of commencement of those sections except where an order has been made before the respective dates of commencement of those sections; and the former provisions of the principal Act in force immediately before the commencement of those sections shall continue to apply to all those claims and rights and obligations as if those sections had not been enacted.

(5) Any subsidiary legislation made under the principal Act as in force before the commencement of section 22 of this Act and in force immediately before that commencement shall, so far as it is not inconsistent with the provisions of the principal Act as amended, continue in force until it is revoked or repealed by subsidiary legislation made under the principal Act as amended by section 22 of this Act.

(6) For a period of 2 years after the date of commencement of this section, the Minister may, by regulations published in the Gazette, prescribe such provisions of a savings or transitional nature consequent on the enactment of this Act, as he may consider necessary or expedient.

Section 41 Amendment Act uses the words “this Act” to refer to the Amendment Act and “principal Act” to refer to WCA.

Section 41(1) Amendment Act provides, in effect, a general rule that WICA is not to apply to claims for compensation, and any rights and obligations, in respect of personal injury caused by accidents happening before 1 April 2008. The other subsections of the said s 41 provide for exceptions to this general rule.

Under s 41(2) Amendment Act, certain sections of the Amendment Act are said to apply to claims for compensation, and any rights and obligations, in respect of personal injury caused by accidents happening before 1 April 2008. From the said s 41(2), I note that the following sections of WICA, so far as material to the present case, apply retrospectively: Sections 25A to 25D WICA: This is because s 41(2) Amendment Act refers to s 25 Amendment Act. That section introduces ss 25A to 25D WICA. Section 28(1) WICA: This is because s 41(2) Amendment Act refers to s 28(a) Amendment Act. That section makes amendments to s 28(1) WCA.

The exceptions under s 41(3) Amendment Act are not applicable in the present case because the respondent’s Compensation Claim was made before 1 April 2008.

The exceptions under s 41(4) Amendment Act are applicable because the Commissioner made an order after 1 April 2008. The said s 41(4) refers to s 28(b) Amendment Act. That section introduces s 28(1A) WICA.

I...