Abdul Hadi bin Hamdan v Goldin Enterprise Pte Ltd

Lee Seiu Kin J :

[1] This appeal turns on the interpretation of s 33(2)(a) of the Work Injury Compensation Act (Cap 354, 2009 Rev Ed) (“the Act”). The salient facts are as follows.

[2] The plaintiff, who was an employee of the defendant at the material time, suffered an injury at his place of work on 8 November 2008. He duly filed a claim for compensation under s 11 of the Act and on 1 February 2010, the commissioner served a notice of assessment under s 24(2)(a) of the Act (“the Notice of Assessment”). The effect of the Notice of Assessment would be that the plaintiff would be entitled to be paid about $19,800 by the defendant. The plaintiff, who was unrepresented, instructed solicitors sometime in May 2010, and in that same month, the plaintiff’s solicitors wrote to the defendant’s solicitors to make a claim under common law. The defendant’s solicitors replied and took the position that the plaintiff was precluded from making a claim under common law and tendered a cheque in payment under the Notice of Assessment. On 27 July 2010, the plaintiff’s solicitors wrote to the commissioner of labour (“the commissioner”) to state the plaintiff’s objection to the Notice of Assessment pursuant to s 25(1) of the Act. Although this provision states that such objection must be made within 14 days of service of the Notice of Assessment, it also provides that the commissioner had a discretion to allow a longer period. In the event, the commissioner allowed the objection to be made out of time and proceeded to refer the plaintiff’s objection to the work injury compensation medical board (“WICMB”) for a medical assessment in accordance with regulation 4 of the Work Injury Compensation (Medical Board) Regulations (Cap 354, Rg 6, 2010 Rev Ed). By letter of 3 March 2011, the commissioner notified the plaintiff that the WICMB had made an assessment of 17% permanent incapacity. This would translate to a payment of about $30,600 under the Act. In the same letter the commissioner requested the parties to attend a pre-hearing conference on 16 March 2011. However at that hearing, the plaintiff’s solicitor informed the commissioner that the plaintiff was dissatisfied with the 17% awarded and had given instructions to withdraw the plaintiff’s claim under the Act. This was confirmed in the letter from the plaintiff’s solicitors to the commissioner dated 30 March 2011. The plaintiff filed the writ in this suit on 30 June 2011. The defendant applied to strike it out on the ground that s 33(2)(a) of the Act prevented the plaintiff from pursuing this claim. Before me, the plaintiff appealed against the decision of the district judge ordering the claim to be struck out.

[3] Section 33(2)(a) of the Act provides as follows:

[4] Counsel for the defendant, Miss Fan, pointed out that the Notice of Assessment was served by the commissioner on 1 February 2010. The 28-day period for withdrawal of the plaintiff’s claim expired on 1 March 2010. The plaintiff only withdrew it more than one year later, on 16 March 2011. Miss Fan submitted that the plaintiff was precluded from making his claim in this suit by operation of s 33(2)(a) of the Act as he had not withdrawn his claim under the Act within the 28-day period.

[5] Counsel for the plaintiff, Mr Liew, submitted that the term “notice of assessment” in s 33(2)(a) of the Act ought not to be read with reference to s 24(2)(a) and that, on a consideration of the policy and objectives behind the Act, where an objection has been made, it should refer to an order made by the commissioner after he had conducted a hearing under s 25D and made an order for compensation under that provision. Since, in the present case, the plaintiff had withdrawn his claim prior to such hearing, the plaintiff was not precluded from proceeding with his claim in this suit.

[6] I did not agree with the plaintiff’s position and dismissed the appeal on the simple ground that the Act is very clear on this. The term used in s 33(2)(a) of the Act to describe the event from which the 28-day period runs is “service of the notice of assessment of compensation”. The provision in which the term “notice of assessment of compensation” is first used in s 24 of the Act, which provides as follows:

[7] The next provision that uses that term is in s 25(1) of the Act, which provides as follows:

It should be noted that there is a time limit of 14 days which is referenced against “service” of the same “notice of assessment”.

[8] The third and last provision in the Act in which the expression “notice of assessment” is used is s 33 of the Act. The plaintiff’s position that the time period in s 33(2)(a) runs with reference to the commissioner’s order under s 25D does not accord with the language employed in s 25D, which provides as follows:

The events in s 25D are described as “hand down a decision” and “order for the payment of compensation”, which are not only very different words from “notice of assessment of compensation” but also concern different concepts. A notice of assessment under s 24(2)(a) is not an order for payment but a statement of an amount payable as compensation which the employee may object to, and if he does so, there is a procedure for review. The event in s 25D is a final order for payment after the review.

[9] It is therefore clear from the manner in which s 24 of the Act is drafted that the specific term “notice of assessment of compensation” in s 33(2)(a) refers to the notice in s 24(2). Furthermore, s 33(2)(a) refers to “service” of the notice of assessment of compensation which is the act referred to in s 24(2) as opposed to the “making” of an order after the hearing in s 25D. As I had observed to counsel during the hearing, the only way that the draftsman could have made it any clearer is to provide in s 33(2)(a) that the notice of assessment is “made under s 24(2)”. While this would have removed any attempt by any employee to make the submission made before me by the plaintiff, I have to say that this omission does not result in any ambiguity at all in the Act.

[10] In view of the clarity of the provisions in the Act, it is not necessary to provide any further justification beyond this point, but as counsel have made submissions before me, I shall set these out. The Act came into force on 1 October 1975 under the name of Workmen’s Compensation Act 1975 (Act No 25 of 1975) (“the Old Act”). Under the Old Act, the equivalent provision, which is s 33(1) provided as follows:

There was an ambiguity as to whether this precludes an employee from maintaining an action in court if he has applied for compensation but has subsequently withdrawn it. This was considered in a number of decisions of the Court of Appeal, High Court as well as the District Court. In Yang Dan v Xian De Lai Shanghai Cuisine Pte Ltd [2011] 2 SLR 379 (“Yang Dan”), Woo J reviewed those decisions, as well as two English decisions, and concluded that the prohibition in the Old Act does not apply if the employee had withdrawn his application before the commissioner makes an order for compensation (Yang Dan at [56(c)] and [57]).

[11] In the second reading speech for the Workmen’s Compensation (Amendment) Bill (No 50 of 2007) on 22 January 2008, the Minister of State for Manpower stated as follows (Singapore Parliamentary Debates, Official Report (22 January 2008) vol 84 at cols 265-266):

[12] The Bill was passed and the Workmen’s Compensation (Amendment) Act 2008 (Act No 5 of 2008) came into force on 1 April 2008 (“the Amendment Act”). The Amendment Act renamed the Old Act to its present name and made a number of changes, some of which were very significant. Amongst those was what is now s 33(2) of the Act. It can be seen from the tenor of that part of the second reading speech reproduced above that s 33(2) of the Act has reset the event in relation to which time runs for withdrawal of a compensation claim in order to preserve the employee’s right to proceed by way of a suit in the court to make a claim under common law. Under the Old Act, it was the date of the final order for compensation. The legislature had considered that to be unsatisfactory and had amended s 33. It is clear from the words in s 33(2) of the Act that the event from which time runs to withdraw a claim is now the date of service by the commissioner of a notice of assessment under s 24(2) of the Act.