Yang Dan v Xian De Lai Shanghai Cuisine Pte Ltd

Woo Bih Li J:

[1] 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.

[2] 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”.

[4] 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.

[5] 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).

[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.

[7] 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.

[8] 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).

[9] 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.

[10] 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.

[11] 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”)).

[12] 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.

[13] 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:

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

[14] 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.

[15] 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:

(a) 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.

(b) 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.

[16] 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.

[17] 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.

[18] I have so far stated the material provisions of WICA that are applicable in the present case. In the next section, I will describe the provisions of WCA and WICA that are relevant to the present case.

[19] Under s 24 WCA, the Commissioner has the power to assess and make an order on the amount of compensation. Section 24(2) WCA provides for the Commissioner to serve a notice stating the amount of compensation payable in accordance with the assessment made by the Commissioner under s 24(1) WCA. Section 24(3) WCA provides that if no objection is received by the Commissioner within two weeks of service of the notice under s 24(2) WCA, then the employer and the person claiming compensation are deemed to agree to the assessment and the assessment of compensation shall have the effect of an order under s 25(2) WCA (“Deemed Order”) but no appeal shall lie against such an order. Section 24(1) to (4) WCA are either not relevant or not applicable to the present case. It is useful to set out s 24(1) to (3) WCA in full:

[20] If written objection is made to the notice of assessment of compensation within the stipulated deadline, then s 25(2) WCA provides that the Commissioner shall as soon as practicable conduct a hearing of the case and may hand down a decision accordingly and in pursuance of that decision, make such order for the payment of compensation as he thinks just (“Post-hearing Order”). It is useful to set out s 25 WCA in full:

[21] Under s 25A WICA, which is applicable in the present case, the Commissioner may, inter alia, make such order at any time after a Compensation Claim is made. Under s 25B WICA, which is also applicable in the present case, the Commissioner is given the power to direct the parties to attend a pre-hearing conference. If the parties agree to a settlement of some or all matters for hearing, the Commissioner may record the settlement and make an order to give effect to the settlement (s 25B(5) WICA) . For present purposes, I will refer to an order to give effect to a settlement of all matters for hearing as a “Settlement Order”. Section 25D WICA is also applicable in the present case. That section allows the Commissioner to conduct a hearing after a Compensation Claim is made, hand down a decision and make an order for payment of compensation at or after the hearing. This is a post-hearing order which is similar to the Post-hearing Order under s 25(2) WCA.

[22] Section 28(1) WICA, which is applicable in the present case, provides that an order made or deemed to be made under, inter alia, ss 24, 25A, 25B, 25C or 25D must be enforced by a District Court in the same manner as a judgment of that court.

[23] It is important to appreciate the difference between an assessment and an order in the scheme of the WCA and WICA provisions described above. The Commissioner’s making of an assessment and his service of a notice of assessment under ss 24(1) and (2) WCA are, in effect, the first stage of the determination of a Compensation Claim (“the Assessment Stage”). After the Assessment Stage, the workman or the employer has two weeks to object to the Commissioner’s assessment. If either party objects within that period, the Compensation Claim proceeds to a second stage. At this second stage (“the Hearing Stage”), the Commissioner conducts a hearing, makes a decision and makes a Post-hearing Order if there is no settlement of all matters before he makes that decision. If after the Assessment Stage, there is no objection to the Commissioner’s assessment within two weeks, the assessment becomes a Deemed Order. Furthermore, under ss 25A and 25B WICA, at any time after a Compensation Claim is made, the Commissioner may give such direction as he thinks fit and may require parties to attend a pre-hearing conference. If the parties agree to a settlement of all matters for hearing during a pre-hearing conference, the Commissioner may record that settlement and make a Settlement Order to give effect to the settlement under s 25B(5) WICA. All three types of orders, ie, a Deemed Order, a Settlement Order and a Post-hearing Order are different from the Commissioner’s assessment.

[25] It is also helpful to bear in mind that in Ying Tai Plastic & Metal Manufacturing (S) Pte Ltd v Zahrin bin Rabu [1983-1984] SLR(R) 212 (“Ying Tai Plastic”), a Court of Appeal decision that I will consider later, s 33(1) and s 33(2) WCA were both comprised in s 33(1) of the relevant legislation then.

[26] The District Judge first held that the case was governed by WCA and not WICA. This was an error. As I have noted above, the present case is governed by a mixture of WCA and WICA provisions.

[27] The District Judge considered the argument that the respondent could not withdraw his application for compensation because his claim had been finally assessed. However, the District Judge found that WCA did not expressly bar a claimant from making a General Law Claim if he fails in his Compensation Claim. The District Judge’s reasons were as follows:

(a) The District Judge noted that the respondent could not withdraw his Compensation Claim, because it had been finally assessed. In the view of the District Judge, it did not make sense to speak of withdrawing a claim for compensation when the claim had already been conclusively disposed of. The District Judge considered that the views of the High Court in Rahenah bte L Mande v Baxter Healthcare Pte Ltd and Another [2002] SGHC 320 (“Rahenah”) and Chua Ah Beng v Commissioner for Labour [2002] 2 SLR(R) 945 (“Chua Ah Beng”) supported his opinion that a Compensation Claim could not be withdrawn after the Commissioner finally assessed it. However, the District Judge considered that the real issue before him was whether the respondent could still maintain his General Law Claim having regard to the scheme under WCA and on general principles. Accordingly, it did not matter that the respondent could not withdraw his Compensation Claim, as such.

(b) Under s 25 WCA, an unsatisfied claimant has 14 days to make an objection to the Commissioner’s assessment. The District Court in Abdus Salam Hashem Miah v Utraco Pte Ltd [2005] SGDC 231 (“Abdus Salam”) took the view that a claimant who fails to make an objection within 14 days would be abusing the process of the court if he were to make a General Law Claim. The District Judge disagreed with Abdus Salam. In his view, the object of WCA was intended to make it easier for claimants to recover compensation and not to make it difficult to do so.

(c) Under s 25 WCA, a claimant who fails to object to the Commissioner’s assessment within 14 days loses the right to have a hearing before the Commissioner. Section 25 does not provide that a further consequence of failing to object within 14 days is that the claimant will be barred from making a General Law Claim. In the District Judge’s view, it would be incorrect to read s 25 WCA as imposing such a further consequence.

(d) It would not be correct to say that a claimant loses his right to make a General Law Claim unless WCA, or some other law, expressly says so. The District Judge did not find any provision in WCA (or under any other law) which expressly precluded a workman from instituting a General Law Claim if he should fail in his Compensation Claim. Neither would the availability of a General Law Claim in the present circumstances militate against the spirit of WCA.

(e) The District Judge opined that his reading of WCA does not prejudice employers. In his view, employers will not be exposed to multiple proceedings because the WCA regime is premised on no fault recovery. This is different from the scheme of recovery under general law.

(f) The District Judge was persuaded by the views of the High Court in obiter in Chua Ah Beng where the High Court remarked that a claimant who fails in his Compensation Claim may make a General Law Claim.

(g) The District Judge rejected an argument made by the appellant’s counsel that the respondent would be “getting 2 bites of the cherry” if he were allowed to maintain his General Law Claim. The District Judge considered that the respondent would, instead, be getting “separate bites of two different cherries”.

[28] The issue on appeal is whether the respondent is entitled to pursue a General Law Claim in the circumstances before me.

[29] I should set out in some detail the previous case law on the interpretation of s 33(2)(a) WCA.

[30] The Court of Appeal in Ying Tai Plastic held that an application to the Commissioner does not “ipso facto abrogate a workman’s common law right for damages” (Ying Tai Plastic at [26]). According to the Court of Appeal, a workman has the right to withdraw his Compensation Claim and make a General Law Claim (Ying Tai Plastic at [27]). However, it is important to bear in mind that in that case, no assessment for compensation had been made yet.

[31] In the cases of Rahenah and Chua Ah Beng, it was also suggested (at [16] and [18] in Rahenah and [38] in Chua Ah Beng) that the workman would have to withdraw his Compensation Claim before proceeding with a General Law Claim. The suggestions in those two cases appear to have been influenced by what the Court of Appeal said in Ying Tai Plastic at [25]:

However, in Pang Chen Suan v Commissioner for Labour [2008] 3 SLR(R) 648 (“Pang Chen Suan”), the Court of Appeal said at [34] that the point was not decided in Ying Tai Plastic and suggested, obiter, at [33] that a workman may suspend or stay his Compensation Claim and proceed with a General Law Claim or vice versa. For brevity, any references to a withdrawal of a Compensation Claim in this judgment should be taken as including a reference to the alternative mechanism of suspending or staying a Compensation Claim.

[32] I should also mention a point that was made in the High Court decision in Ying Tai Plastic (see Zahrin bin Rabu v Ying Tai Plastic & Metal Manufacturing (S) Pte Ltd [1981-1982] SLR(R) 511 (“Ying Tai Plastic (High Court)”)). At the High Court, A P Rajah J observed that the Commissioner in the case before him had not made an order for compensation. Rajah J further observed that if such an order had been made, it could have been argued that the order merged with other rights of action (at [22]):

[33] I will return to Rajah J’s observation on merger later. At this point, it is sufficient to note that Rajah J’s view seemed to have been that an order made by the Commissioner under s 25 WCA would result in a merger of the workman’s rights of action with the order. He did not seem to have addressed the possibility of the workman’s rights of action merging with the Commissioner’s assessment of compensation. As explained above, an assessment of compensation is different from an order under s 25 WCA.

[34] Coming back to the issue before me, three High Court cases are relevant.

[35] The first is Rahenah. In that case, Judith Prakash J held that a workman had to expressly notify the Commissioner that he is withdrawing his Compensation Claim before pursuing a General Law Claim. Rahenah concerned a workman who made a General Law Claim while her Compensation Claim was still pending. Of importance is the following statement at [18] of Prakash J’s decision:

[36] This passage shows that Prakash J’s view was that a workman could only withdraw his claim before the Commissioner finally assessed the Compensation Claim. The words “finally assessed” are ambiguous. Similar words were used by the District Judge. They could refer literally to a mere assessment by the Commissioner. That seemed to be the interpretation of counsel before me. Alternatively, Prakash J could have been using the words loosely to mean the stage where an order is made or deemed to be made by the Commissioner. This alternative interpretation is supported by Prakash J’s use of the word “finally” in describing the Commissioner’s assessment.

[37] The next case that should be considered is Chua Ah Beng. The decision in Chua Ah Beng was released just nine days after Prakash J gave her grounds of decision in Rahenah.

[38] Chua Ah Beng concerned the interpretation of s 33(3) WCA, which is described above. In that case, Tay Yong Kwang JC made obiter remarks on s 33(2) WCA.

[39] At [31] of his decision, Tay JC remarked as follows:

[40] This suggests that Tay JC read Ying Tai Plastic as providing that in order for a workman to maintain a General Law Claim, he must withdraw his claim before the workman’s Compensation Claim has been determined. It is not clear what Tay JC meant by the determination of a Compensation Claim. He could have been referring to either an assessment or an order.

[41] At [32]–[33] of his decision, Tay JC said as follows:

[42] Here, Tay JC takes the view that a workman who “fails” in his Compensation Claim may proceed with a General Law Claim. It is not clear what he meant by failing in a Compensation Claim. Again, Tay JC could have been referring to a workman who obtains a zero compensation assessment or, alternatively, a workman who obtains a zero compensation order.

[43] The third case of relevance was Xu Jiang Lin v Tiong Seng Contractors Pte Ltd DC Suit 3594/2004 (“Xu Jiang Lin”). In Xu Jiang Lin, the Commissioner assessed the plaintiff workman’s compensation at $11,771.57. After the Commissioner’s assessment, the plaintiff purported to withdraw his Compensation Claim within the stipulated time frame under WCA to object to the assessment. Aedit Abdullah DJ agreed that the plaintiff had withdrawn his Compensation Claim but held that the withdrawal was ineffective because of his failure to also object to the Commissioner’s assessment. Abdullah DJ concluded that the plaintiff was barred from commencing a General Law Claim (see Xu Jiang Lin v Tiong Seng Contractors Pte Ltd [2005] SGDC 270 at [40]).

[44] The plaintiff appealed against Abdullah DJ’s decision. Prakash J allowed the appeal. Prakash J did not provide any written grounds of decision. However, she decided that the workman’s withdrawal of his Compensation Claim was effective even though the withdrawal was made after the Commissioner’s positive assessment and that the workman’s General Law Claim should be reinstated.

[45] It should be noted that if Prakash J’s use of the words “finally assessed” in Rahenah are read as referring to a withdrawal before an assessment by the Commissioner, her decision in Xu Jiang Lin would be contrary to her view in Rahenah.

[46] Two District Court cases are also relevant. They reached opposing conclusions.

[47] The first is Abdus Salam. The facts in Abdus Salam are similar to the present case. The plaintiff workman made a Compensation Claim. The Commissioner assessed that zero compensation was payable. The plaintiff did not object to the notice of assessment within 14 days. The plaintiff then purported to withdraw his Compensation Claim 10 months after the service of the notice of assessment and commenced a General Law Claim. Mavis Chionh DJ decided that the plaintiff could not withdraw his claim after the Commissioner’s “final determination”. Chionh DJ declined to follow Tay JC’s remarks in Chua Ah Beng, considering his remarks to have been made in obiter. The words “final determination” are also not clear. However, it appears that Chionh DJ was referring to an order because she later relied on s 24(3) WCA as support for her holding. She seemed to have considered that the Commissioner’s assessment had become a Deemed Order.

[48] The second District Court case, MD Sokon Uddin MD Nurul Bhuiyan v OES Constructions Pte Ltd and W.G. Prestige Associates (Pte) Ltd DC Suit 4142/2006 (“MD Sokon”), came to an opposite conclusion. In that case, the workman gave a notice of objection to an assessment more than one year after the assessment. Toh Han Li DJ decided that the plaintiff workman could maintain a General Law Claim even after the Commissioner assessed that he had zero percent permanent incapacity. Toh DJ did not provide written grounds of decision. However, the following portion of Toh DJ’s notes of arguments indicates his reasons:

[49] In the course of making further arguments, the appellant’s counsel brought to my attention the House of Lords decision in Young v Bristol Aeroplane Company [1946] AC 163 (“Young”). In Young, a workman maintained a General Law Claim after having received payments under the Workmen’s Compensation Act 1925 (c 84) (UK) (“UK WCA 1925”). The issue was whether the workman’s bringing of a General Law Claim in those circumstances contravened s 29(1) UK WCA, given that the workman knew that he had an alternative right to pursue a General Law Claim. Section 29(1) UK WCA 1925 reads as follows:

This provision is different from s 33(2)(a) WCA.

[50] All their Lordships agreed that the workman could not maintain a General Law Claim if he continued to accept payments under UK WCA 1925 after knowing of his alternative right to pursue a General Law Claim. Young is not directly relevant to the present appeal because their Lordships were concerned with whether the workman’s acts amounted to an exercise of his option to claim compensation under UK WCA 1925. Lord Macmillan, however, made some broader observations that are relevant to the present appeal. His views are worth reproducing at length (Young at 179-181):

[51] As the quoted portion of Lord Macmillan’s speech reveals, his Lordship was of the view that a workman is not entitled to pursue a General Law Claim if he fails in a prior Compensation Claim. It appears that the motivation for this view is the need for finality.

[52] It is important to note what Lord Macmillan meant by a failed claim under UK WCA 1925. In the passages quoted above, Lord Macmillan approved the words of Cozens-Hardy MR in Cribb v Kynoch, Limited (No. 2) [1908] 2 KB 551 (at 555). In that decision, Cozens-Hardy MR referred to a workman who “proceed[s] to trial under the Act and fail[s]” (emphasis added). Cozens-Hardy MR must have been referring to the mechanism under the Workmen’s Compensation Act 1897 (c 37) (UK) (“UK WCA 1897”) for the arbitration of any question on liability to pay compensation under UK WCA 1897 (s 1(3), UK WCA 1897). A similar dispute resolution mechanism is found in s 21 UK WCA 1925. That section provides for arbitration by a county court judge or a representative committee of any questions on liability under UK WCA 1925 if the parties were unable to reach an agreement. Any agreement reached by the parties or any arbitration award by the representative committee or the county court judge would be enforceable as a county court judgment (s 23 UK WCA 1925). Both these mechanisms are similar to the procedure under s 25 WCA in which the Commissioner conducts a hearing if the workman objects to his notice of assessment. It is worth also noting that s 28 WCA is the equivalent of section s 23 UK WCA 1925. The former provides that an order by the Commissioner under s 25 is enforceable in the same manner as a judgment of the District Court.

[53] It is useful to refer to the equivalent of s 33(2) WCA in WICA. The equivalent provisions are ss 33(2), 33(2A) and 33(2B) WICA. I should add that those provisions do not apply retrospectively. The provisions are as follows:

[54] I observe that WICA expressly allows an employee to withdraw his claim even if he has received a positive assessment of compensation, but provides that the employee is to withdraw his Compensation Claim within 28 days after the Commissioner serves him the notice of assessment.

[55] The reasons for the amendments that introduced the above provisions were explained at the second reading of the Workmen’s Compensation (Amendment) Bill (Bill 50 of 2007) (“the Bill”) by Mr Gan Kim Yong (the Minister of State for Manpower) (Singapore Parliamentary Debates, Official Report (22 January 2008) vol 84 at cols 265–266):

[56] Having considered the case law, it appears to me that there are various possible interpretations of the Section 33 Prohibition:

(a) An application per se is sufficient to trigger the Section 33 Prohibition (“Interpretation 1”). This interpretation was rejected in Ying Tai Plastic.

(b) As long as the workman withdraws his Compensation Claim before the Commissioner assesses his Compensation Claim, he may proceed with a General Law Claim (“Interpretation 2”). This was Prakash J’s view in Rahenah, if one were to interpret “finally assessed” as a reference to the Commissioner’s assessment.

(c) As long as the workman withdraws his Compensation Claim before an order is made, he may proceed with a General Law Claim (“Interpretation 3”). Chionh DJ in Abdus Salam adopted this interpretation. This was also Prakash J’s view in Rahenah if one were to interpret “finally assessed” as a reference to an order. This interpretation is also consistent with Prakash J’s decision in Xu Jiang Lin. For convenience, an “order” under this para 56 and the rest of this judgment refers to a Deemed Order, a Settlement Order and a Post-hearing Order .

(d) The workman may withdraw his Compensation Claim even after an order has been made if he fails in that claim (“Interpretation 4”). This is Tay JC’s view in Chua Ah Beng if his reference to a workman failing in his Compensation Claim is understood to mean a workman who obtains a zero compensation order.

(e) The workman cannot withdraw his Compensation Claim after an order has been made. However, the workman may nevertheless proceed with a General Law Claim (“Interpretation 5”). This was the District Judge’s view in the present case (Yang Dan at [18]). He took the view that a Compensation Claim could not be withdrawn “as such” but that the workman could nevertheless maintain a General Law Claim, having regard to the WCA scheme and general principles on the right to maintain an action at common law (Yang Dan at [26]).

[57] In my view, the scheme of the WCA and WICA provisions applicable to the present case shows that Interpretation 3 is the correct interpretation. My reading of the applicable WCA and WICA provisions in the present case is as follows:

(a) Under s 24(3) WCA, the Commissioner’s assessment becomes a Deemed Order if there is no objection thereto within two weeks of the service of the notice of assessment. Section 25(1) WCA refers to a period of 14 days to do so which is the same as the two week period. Once there is a Deemed Order, it is then, in my view, too late for the workman to withdraw his Compensation Claim. In this regard, while the District Judge said that the consequence of a failure to object within the relevant time frame is that the workman loses his right to a hearing and cannot appeal (see Yang Dan at [32]) it is important to bear in mind that a further consequence of a failure to object within the relevant time frame is that the assessment becomes a Deemed Order.

(b) If however there is an objection to the assessment within the relevant time frame, the assessment does not become a Deemed Order. The workman’s right to withdraw his Compensation Claim and proceed with a General Law Claim continues for the time being even if he was not the one who had objected to the assessment.

(c) If there is a pre-hearing conference and an agreement is reached to settle all matters for hearing in that conference, the Commissioner may record a Settlement Order. At that point, the workman will lose his right to withdraw his Compensation Claim and proceed with a General Law Claim.

(d) If the workman does not agree to a settlement of all matters at the pre-hearing conference, the workman’s right to withdraw continues for the time being. However, after the Compensation Claim proceeds to a hearing and the Commissioner makes a Post-hearing Order, it will be too late for the workman to withdraw his Compensation Claim or to proceed with a General Law Claim.

[58] The reason for my view that an order precludes withdrawal is that once an order is made, the Compensation Claim merges into the order. Once merger takes place, it is impossible for the workman to withdraw the Compensation Claim or to proceed with a General Law Claim. This was the view taken by Rajah J in Ying Tai Plastic (High Court), though it should be added that he did not say that merger only takes place upon the Commissioner’s order.

[59] Interpretation 3 is also supported by considerations of finality and double jeopardy. The need for finality was mentioned in Lord Macmillan’s speech in Young at 179. In my view, final determination of the Compensation Claim occurs once an order is made. No distinction should be drawn between the three kinds of orders. A Deemed Order is just as preclusive as a Post-hearing Order or, for that matter, a Settlement Order. The deeming provision in s 24(3) WCA would be meaningless if one were to draw a distinction between a Deemed Order on the one hand and a Post-hearing Order on the other hand. I should add that it is also not possible to distinguish between a positive assessment and a zero compensation assessment under s 24(3) WCA. The deeming provision does not draw a distinction between positive and zero compensation assessments. It might be thought that it is artificial to deem that a workman “agrees” to a zero compensation assessment if he does not object within the relevant time frame. However, that is the plain effect of the deeming provision.

[60] As for double jeopardy, the District Judge alluded to this concern when he discussed an argument raised by the appellant’s counsel that the respondent would be getting “2 bites of the cherry” if he were to be allowed to sustain a General Law Claim after withdrawing his Compensation Claim (see Yang Dan at [37]). In my view, the employer will indeed encounter double jeopardy if he were made to defend a General Law Claim once an order has been made on the General Law Claim. Although a Compensation Claim is, as the District Judge observed, a “different cherry” from a General Law Claim, the employer faces double jeopardy because he faces a risk of having to pay something on two occasions. The degree and nature of that risk may be different. But it is clear that he faces that risk twice.

[61] Interpretation 3 is also supported by an argument that counsel for the appellant made based on s 33(3) WCA. He pointed out that s 33(3) WCA expressly allows the court to assess compensation for the workman under WCA if he fails in his General Law Claim. Counsel then pointed out that WCA does not in an analogous way expressly allow a workman to maintain a General Law Claim if he fails in his Compensation Claim. Counsel argued that the inference to be drawn from the absence of such an express provision is that the workman should not be entitled to sustain a General Law Claim if he fails in his Compensation Claim. Lord Macmillan made a similar observation in Young in the portions of his speech quoted above at [50]. I reproduce the relevant portion again here (Young at 179):

[62] This argument has some merit. However, it is necessary to clarify when a workman will be considered as having failed in his Compensation Claim under the combination of WCA and WICA provisions. My view is that a workman fails in his Compensation Claim when there is an order and it matters not whether it is a zero compensation order or an order which is positive but falls short of the amount which he has claimed.

[63] I am precluded from adopting Interpretation 1 by Ying Tai Plastic. It is clear from that decision that s 33(2)(a) WCA cannot be read literally as precluding withdrawal just because a Compensation Claim has been made.

[64] I do not consider Interpretation 2 to be correct because the Commissioner’s assessment, by itself, is not a final determination of the workman’s Compensation Claim until it becomes an order. The fact that it is not meant to be final is apparent from the scheme of the WCA and WICA provisions applicable in the present case. Either party still has some time after service of the assessment to object to the assessment.

[65] Interpretation 4 is not correct. Interpretation 4 was the interpretation adopted in Chua Ah Beng. Tay JC’s reasons for his view in Chua Ah Beng were two-fold (Chua Ah Beng at [32]-[33]). First, he considered that it was not clear from the WCA provisions whether a workman who fails in his Compensation Claim may subsequently commence a General Law Claim (Chua Ah Beng at [32]). Second, Tay JC was persuaded by the speech of the Minister for Labour at the second reading of the Workmen’s Compensation Amendment Bill (Bill No 3 of 1971) where the Minister mentioned that the purpose of workmen’s compensation was to “assure workers” of compensation if they are injured in accidents arising out of or in the course of their employment (Chua Ah Beng at [33]).

[66] My view is that a workman must withdraw his Compensation Claim before proceeding with a General Law Claim. If he is unable to withdraw his Compensation Claim, he cannot proceed with a General Law Claim. He will not be able to withdraw his Compensation Claim once an order is made on his Compensation Claim. As for the Minister’s reference to assuring workers of compensation, my view is that while WCA was intended to facilitate the payment of some compensation to an injured workman, it still does not guarantee compensation. For example, a prerequisite to obtaining compensation under WCA is that the workman must have suffered a “personal injury by accident arising out of and in the course of his employment” (s 3(1) WCA).

[67] Interpretation 5 is also not correct. Interpretation 5, in effect, gives no substance whatsoever to the Section 33 Prohibition because it allows a General Law Claim to be made even when it is no longer possible to withdraw a Compensation Claim. On Interpretation 5, the workman is free to pursue a General Law Claim even in the face of an order, with the only restriction being the limitation period for his General Law Claim under the Limitation Act (Cap 163, 1996 Rev Ed). Quite apart from the Section 33 Prohibition, this interpretation gives no weight to considerations of finality and double jeopardy. Furthermore, this interpretation glosses over the point that the Compensation Claim merges into the order made on the Compensation Claim. It is also not apt to say, as the District Judge has said in the present case (Yang Dan at [33]), that there is no express law prohibiting a workman from maintaining a General Law Claim once he has failed in his Compensation Claim. The scheme of the WCA and WICA provisions applicable in the present case, in particular ss 24, 25 and 33 WCA, provides the basis for the prohibition.

[68] The correct interpretation of s 33(2)(a) WCA is that a workman may proceed with a General Law Claim even after the Commissioner has assessed that zero compensation is payable on his Compensation Claim provided that he first withdraws his Compensation Claim. However, once an order has been made on the Compensation Claim, it will be too late for the workman to withdraw his Compensation Claim to pursue a General Law Claim.

[70] I had initially decided to allow the appeal after hearing arguments on 11 August 2010. My decision at that point was motivated by my concerns with finality and double jeopardy, as well as what seemed to me to be a conceptual impossibility of withdrawing a Compensation Claim after it has been assessed. The respondent then made an application for further arguments. In view of the fact that workers’ rights were at issue, I decided to hear further arguments. After further arguments and further consideration, I have reached the conclusion that my initial decision was correct, albeit it is now my view that it is possible to withdraw a Compensation Claim even after assessment, provided that an order has not been made. I thank counsel for their assistance.