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    05:44 PM Aloysius Chang (Associate, K&L Gates LLP); Sean Tan (Legal Executive, Michael Hwang Chambers LLC)

    Do you have an objection? - Goh Yee Lan Coreena and others v P & P Security Services Pte Ltd [2016] SGHC 141

        

    For blue-collar workers, the Work Injury Compensation Act (Cap 354, 2009 Rev Ed) (the “WICA”) provides a simple no-fault regime for work-related injury claims. In aid of its social objective of enabling such workers to obtain compensation swiftly and at low-cost, the WICA provides a dispute resolution mechanism with strict procedural requirements and deeming provisions. The consequences of not adhering to those requirements were brought to the fore in Goh Yee Lan Coreena and others v P & P Security Services Pte Ltd [2016] SGHC 141 (“Coreena”), which has significant ramifications for both employees and employers alike.

    The Work Injury Compensation Regime

    Before going into the facts and holding of Coreena, it is useful to set out the WICA regime. The WICA makes provision for a no-fault compensation regime for employees who have suffered personal injuries by reason of accidents arising out of an in the course of employment, including those that were caused by an internal medical condition.

    The process is initiated by the employee filing a compensation claim to the Ministry of Manpower (“MOM”). The Commissioner for Labour (the “Commissioner”) then serves on the parties a notice of assessment of compensation (“NOA”) stating whether compensation is payable and if so, the amount. If no objections are raised within 14 days, the NOA will take on the effect of a non-appealable order for payment of compensation (s 24 WICA).

    Should any party wish to raise any objections against the NOA, it must, within 14 days from being served with the NOA, give notice of his objection in the prescribed form and manner to the Commissioner “stating precisely the grounds of his objection” (s 25(1) WICA). Such notice of objection (“NOO”) must be made in accordance with Form A in the Schedule of the Work Injury Compensation Regulations (Cap 354, Section 45, 2010 Rev Ed). The Commissioner must disregard any ground of objection given out of time.

    If the objecting party issues a valid NOO, the Commissioner may then proceed to conduct a hearing of the case in the Labour Court and make any order for payment of compensation as he thinks just. An appeal against any order by the Commissioner may be made to the High Court only if a substantial question of law is involved and the amount in dispute is not less than S$1,000.

    The Facts

    The Plaintiffs were the next-of-kin of the deceased, a security guard who was employed by the Defendant. The deceased felt unwell while working the overnight shift that ended in the morning of 15 March 2012, and subsequently died of a heart attack on 17 March 2012. The Plaintiffs then filed a work injury compensation claim against the Defendant. After investigating the circumstances of the death, the Commissioner issued a NOA on 6 March 2013 that was post-dated 18 March 2013 (the “Assessment”).

    Subsequently, the Defendant’s insurer, AXA Insurance Singapore Pte Ltd (“AXA”) filed a NOO in Form A in its own name dated 18 March 2013 (the “AXA Objection”). Section A of the form provided three boxes to be checked according to whether the party raising the objection was the “claimant”, “employer” or “insurer”. AXA checked the box for “insurer”. Section B of the form required the party objecting to state its grounds of objection. AXA checked the box that stated “Admissibility under the Act” as a general ground for objection, and further checked the box that stated the following: “Medical condition/injury/death is/is not* caused or aggravated by an accident that arose out of an in the course of employment (*please delete where inapplicable)”. AXA did not make any deletions; instead, it explained in the form that “[we] were only notified in March 2013. We need to carry out our own investigation”. The Defendant itself did not file any NOO.

    On 1 July 2013, the Defendant orally alleged at a pre-hearing conference (“PHC”) of the Labour Court that the deceased’s death may have been caused by the consumption of sex enhancement pills. On 30 September 2013, the Assistant Commissioner at a PHC excused AXA from further participation in the matter because it had disclaimed liability under the insurance policy and the Defendant had conceded that the policy was not engaged. At the same PHC, the Plaintiffs pointed out that the Defendant had not filed any NOO and that the AXA Objection did not state any grounds of objection. The Assistant Commissioner stated his view that the AXA Objection was a valid NOO and added that the Defendant had orally indicated its grounds of objection during the PHC on 1 July 2013.

    Subsequently, the Defendant was given a toxicology report that showed that no drugs were detected in the deceased’s blood sample. The Defendant then withdrew the sex enhancement pills allegation on 25 November 2013.

    More than a year and a half later, and after multiple adjournments, the Defendant obtained on 2 April 2015 a cardiologist’s report from Changi General Hospital, in which the cardiologist opined that the deceased’s heart attack was likely caused by massive blood loss with an undetermined cause, with no clear relation to the deceased’s work. At a further PHC held on 9 April 2015, the Defendant referred to the cardiologist’s report and raised, as its new ground of objection, the allegation that the deceased’s death was due to mysterious massive blood loss. The Assistant Commissioner then scheduled the case for hearing on 21 and 22 May 2015, and issued a Notice of Hearing dated 28 April 2015.

    On 19 May 2015, the Plaintiffs filed an appeal against, inter alia, the Assistant Commissioner’s decision to schedule the hearing, with the substantial question of law being whether the Labour Court’s power to hold a hearing under s 25D had ceased because the Assessment had, due to the lack of a valid NOO and pursuant to s 24(3) WICA, become a non-appealable order for payment of compensation.

    The Judgment

    There were three main issues:

    (a) Whether the Defendant could rely on the AXA Objection as its own (the “Reliance Issue”);

    (b) Whether the AXA Objection was, in any event, defective for not stating precisely the grounds of objection (the “Defect Issue”); and

    (c) Whether the Defendant could rely on its oral objection and grounds of objection to the Assessment made during the PHCs (the “Oral Objection Issue”).

    Judicial Commissioner Chua Lee Ming (“Chua JC”) allowed the appeal, setting aside the Assistant Commissioner’s decision to schedule the case for hearing and declaring that the Assessment had, pursuant to s 24(3) WICA, the effect of an order for payment of compensation.

    On the Reliance Issue, Chua JC held that the AXA Objection could not be seen as an NOO filed by the Defendant itself. First, Chua JC observed that AXA did not file the AXA Objection in the Defendant’s name or on behalf of the Defendant despite its entitlement under the terms of the insurance policy to take over and conduct the defence in the Defendant’s name. The AXA Objection also had no indication that the Defendant was bound by it. Second, under the law of subrogation, AXA was entitled to be subrogated to the Defendant’s rights only upon payment of the loss sustained by the Defendant; since AXA had disclaimed liability and made no payment, AXA had no rights of subrogation. Further, any subrogated rights can only be exercised in the subrogor’s name (unless they have been assigned at law to the subrogee); since AXA did not file the AXA Objection in the Defendant’s name, and there was no assignment at law to AXA, there was no valid exercise of any subrogated rights by AXA.

    On the Defect Issue, Chua JC held that the AXA Objection was defective in that it did not state precisely the grounds of objection, as required under s 25(1) WICA. Chua JC held that the defect in the AXA Objection, in which AXA had merely stated in its objection that it needed to carry out its own investigations, was fatal, as neither the Commissioner nor the Plaintiffs would have known from reading the objection what the precise grounds of objection were. Chua JC also noted that, even if the Commissioner had proceeded with the hearing, there would have been no grounds for him to deal with, as the Commissioner was, pursuant to s 25(2) WICA, mandated to disregard any ground of objection that was not given in a valid NOO.

    On the Oral Objection Issue, Chua JC held that the Defendant could not rely on the Oral Objection. First, Chua JC observed that the Oral Objection was given neither in the prescribed form nor during the prescribed 14-day time period, and that the Commissioner was, pursuant to s 25(2) WICA, duty bound to “disregard any ground of objection” given outside the prescribed period. Further, while s 25(1) WICA allowed the Commissioner to extend the period for filing of objections, no application to extend time had ever been made. The Commissioner also opined that the mandatory nature of s 24(3) WICA, which states that an NOA “shall” have the effect of an order for payment of compensation if no NOO had been filed within the prescribed 14-day time period, had suggested that any application for an extension of time to file an NOO would have to be made during the 14-day time period.

    Second, Chua JC held that it would have been contrary to the objectives of the WICA to allow employers rely on oral objections. Chua JC observed that the parliamentary intention of the WICA had been clearly stated during the second reading of the Work Injury Compensation (Amendment) Bill 2011 as being “a piece of social legislation that aims to provide low-cost and expeditious resolution of work-related injury claims” (Singapore Parliamentary Debates, Official Report (21 November 2011) vol 88 at cols 594-595 (BG (NS) Tan Chuan-Jin, Minister of State for National Development and Manpower)) , and that this objective was sought to be achieved by the requirement for NOOs to state precise grounds to be filed within the prescribed period and the mandatory provisions of s 24(3) WICA. Chua JC then took the view that allowing employers to rely on oral objections made out of time would have frustrated that objective, and therefore held that the provisions of the WICA must be strictly adhered to.

    Commentary

    Coreena has significant ramifications for WICA claims. First, it shows that any party that wishes to object to an NOA must strictly adhere to the WICA’s procedural requirements, in particular: (i) filing an NOO in one’s own name; (ii) stating precisely the grounds of objection in the NOO; and (iii) filing the NOO within the prescribed 14-day time period. Any party that wishes to object but cannot do so within the time limit (eg due to lack of knowledge on the circumstances of the accident or the extent of the injury in question) should file an application with the Labour Court to seek an extension of time. The Labour Court should in turn state clearly the amount of any extra time granted.

    Second, it is not open to the objecting party to rely on oral objections made out of time. It is submitted that this is entirely sensible. Since the WICA’s objective is to provide low-cost and expeditious resolution of work-related injury claims, it would utterly frustrate that objective should an employer be allowed to first put forth a bare objection without any grounds and then seek multiple adjournments in a bid to discover some hitherto unknown ground for objecting, or worse, seek some other ground(s) of objection when its former grounds could not be made out. In such a scenario, the employee or his next-of-kin would be forced to wait an inordinate amount of time before knowing whether he is entitled to compensation, or even what allegations he has to address. This could have very serious consequences for blue-collar workers who are put out of work due to a work-related injury, as well as for their families.

    Separately, another point of interest that arose during proceedings was the interplay between public law and the WICA’s appeal mechanism. While Chua JC did not find it necessary to engage with the parties’ public law arguments, we comment about it here as we feel that it is of general importance.

    As per s 29(2A) WICA, one of the requirements for appealing against an order made under the WICA is that it must involve a “substantial question of law” - the question is whether this includes the traditional heads of judicial review (irrationality, illegality, and breach of natural justice/procedural impropriety). The Singapore High Court has previously accepted that the wording of s 29 WICA encompasses the full range of errors of law found in Halsbury’s Laws of England vol 1(1) (Butterworths, 4th Ed Reissue, 1989) (the “1989 List”): see Karuppiah Ravichandran v GDS Engineering Pte Ltd [2009] 3 SLR(R) 1028; Ng Swee Lang v Sassoon Samuel Bernard [2008] 1 SLR(R) 522.

    The 1989 List includes examples of irrationality and illegality, but not of breach of natural justice. For that reason, Justice Choo Han Teck (“Choo J”) subsequently held in Selvam Raju v Camelron General Contractors and another [2010] 2 SLR 1113 (“Selvam Raju”) that  breach of natural justice would not constitute a ground for appeal under s 29 WICA. Choo J recognised that this conclusion was deeply unsatisfactory, and was reached with “some reluctance”. By creating a distinction between breach of natural justice and the other heads of judicial review, an appellant would potentially be required to take out two separate actions (appeal and judicial review) in order to challenge the Commissioner’s decision. This went against the WICA’s goals of simplicity and expedition, not to mention the increased strain on the typical workman’s limited earnings. Nevertheless, Choo J felt himself to be limited by the authorities and Parliament’s legislative approach.

    With greatest respect, we disagree with the ruling in Selvam Raju that a breach of natural justice is not an error of law.

    (a) First, the 1989 List is inclusive (“[e]rrors of law include”), not exhaustive. Moreover, the list enumerated in the latest version of Halsbury’s Laws of England (Volume 61 (2010)) at [612] now includes a “fail[ure] to follow the proper procedure required by law”, with the relevant footnote directing to the reader to consider paragraph 625 of the same volume, the heading of which is “procedural fairness”.

    (b) Second, this view is consistent with Halsbury’s of Singapore (Volume 1 (2015)), in which the learned authors expressly acknowledged (at [10.035]) that a failure to follow proper procedure, such as the rules of natural justice, would constitute an error of law.

    (c) Third, the English courts appear to have accepted that an “appeal on a point of law includes all judicial review grounds” (Michael Fordham QC, Judicial Review Handbook (Hart Publishing, 6th Ed, 2012), citing, inter alia, E v Secretary of State for the Home Department [2004] WECA Civ 49 and RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10).

    While Chua JC did not consider Coreena to be an appropriate case to comment on the above, it is our continued hope that a future court may take the chance to restate the law.

    * This blog entry may be cited as Aloysius Chang and Sean Tan, “Do you have an objection? – Goh Yee Lan Coreena and others v P & P Security Services Pte Ltd [2016] SGHC 141” (4 August 2016)  (http://www.singaporelawblog.sg/blog/article/167)

    ** A PDF version of the entry may be downloaded here

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