Singapore Bus Service Ltd

- vs -

Lim Swee Pheng & Sons (Pte) Ltd

Judgment

CJ Wee CJ

(delivering the judgment of the court)

1. On 14 June 1976 a lorry driver in the employ of Lim Swee Pheng & Sons Pte Ltd was driving his employer’s lorry no Y9321H along Upper Thomson Road, when it broke down. He got out of the lorry and when he was underneath it to try and repair it a bus belonging to Singapore Bus Service Ltd (the appellants in this appeal) collided with the stationary lorry in attempting to overtake it. As a result of the collision the lorry lurched forward and the lorry driver sustained injuries from which he subsequently died.

2. The Commissioner under the Workmen’s Compensation Act 1975 (the Act) assessed the compensation payable under the Act to the ‘dependants’ of the deceased lorry driver in the sum of $31,514.40. The deceased’s employers, being obliged to pay under the Act, paid the assessed compensation and commenced the present action against Singapore Bus Service Ltd claiming to be indemnified in respect of the said sum of $31,514.40. The claim to be indemnified is based upon the provisions of s 18 of the Act which reads as follows:

   Where any injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof — (a) the workman may take proceedings against that person to recover damages and may claim against any person liable to pay compensation under this Act, but he shall not be entitled to recover both damages and compensation; and (b) if the workman has recovered compensation under this Act, the person by whom the compensation was paid … shall be entitled to be indemnified by the person so liable to pay damages as aforesaid.

3. Choor Singh J found that the driver of the bus was negligent in overtaking the stationary lorry and was solely to blame. Choor Singh J also found, on the true construction of s 18(b) of the Act, that the deceased’s employers, having established that the appellants’ servant was solely to blame, was entitled to be indemnified by the appellants to the extent of the compensation paid by them to the deceased’s dependants. It was not in dispute that the deceased left surviving him two sons who were not dependent on his earnings. Choor Singh J held that the expression ‘shall be entitled to be indemnified by the person so liable to pay damages as aforesaid’ in s 18(b) merely identified the person against whom an indemnity can be claimed.

4. The appellants now appeal. First, they contend that the trial judge was wrong in finding that their servant was solely to blame. The argument is that the deceased was also negligent in parking the lorry on a narrow road. The evidence was that the lorry was parked where it was at the time of the collision because it had broken down. It was parked on the extreme edge of the road and in daylight. On that evidence, which was undisputed, it cannot be said that the trial judge was wrong in not finding that the deceased was negligent and in placing the sole blame on the driver of the bus.

5. Their main contention is that the trial judge was wrong in his construction of s 18(b) of the Act. The argument is that, on the true construction of s 18(b), the entitlement of an employer who has paid compensation under the Act to be indemnified by the person who is under a legal liability to pay damages is limited to the amount of damages which the workman or his dependants could have recovered in an action for damages.

6. Section 3 of the Act imposes a statutory liability upon the employer irrespective of fault to pay compensation. Section 6 provides that where compensation is payable, it shall be payable to or for the benefit of the workman, or, where death results from the injury, to or for the benefit of the dependants as provided by the Act. Section 7 provides that the amount of compensation payable shall be in accordance with the Third Schedule to the Act. Under para I of the Third Schedule where death results from the injury the amount of compensation shall be a lump sum of $35,000 or, depending on the age of the workman at the time of the accident, equal to nine or seven or six years’ earning, whichever is less. Section 2 defines ‘dependant’ in respect of a deceased workman to mean, inter alia, ‘child … irrespective of whether such person is actually dependent on the workman’s earnings …’

7. Section 18 provides that where any injury for which compensation is payable under the Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof the workman may sue that person to recover damages and may claim compensation under the Act against his employer but he may not recover both damages and compensation. Section 18 also provides that an employer who has paid compensation under the Act ‘shall be entitled to be indemnified by the person so liable to pay damages as aforesaid’. The object of s 18(a) was to prevent the workman or his dependants from enforcing the double remedy and recovering damages and compensation. Where the workman or his dependants elect to claim and recover compensation under the Act when his injury was caused by the wrongful act, of a ‘stranger’, s 18(b) provides that the wrongdoer should not escape the consequences of his wrongful act by giving the workman’s employer an entitlement to be indemnified by the wrongdoer in respect of the compensation which he has paid.

8. The general object of the Act was to make the employer, irrespective of fault, liable to pay compensation for injuries sustained in the employment. Sections 6 and 7 and the Third Schedule to the Act are part of the scheme for compensation. They prescribe the amount of compensation that has to be paid by the employer and or whose benefit the compensation is payable. Section 18 is another part of the scheme. It provides that the workman’s common law rights are not affected, it provides against the possibility of the workman obtaining both damages and compensation and, lastly, it provides an indemnity for the employer who has paid compensation by the person who is responsible in law for the injury to the workman which has caused the employer to be liable to pay compensation.

9. In our opinion, giving the language of s 18 its natural meaning in the context of the Act as a whole, the indemnity which the employer is entitled to is of the whole amount of the compensation which the person who is responsible in law for the injury has caused him to pay. There is no ambiguity in the language of s 18(b) and there is nothing in the language of s 18 to suppose that it is intended that the amount of indemnity which the employer is entitled to is to be at large to be settled in an action.

10. Accordingly, the appeal is dismissed with costs.

    Judgment below

    Choor Singh J

11. In this action the plaintiffs claimed under s 18(b) of the Workmen’s Compensation Act 1975, an indemnity in respect of the sum of $31,514.40 which the plaintiffs had paid by way of compensation to the dependants of their servant Buang Abdullah who died as a consequence of the negligence of the defendants’ servant Wee Chow Soon.

12. The facts are these. Buang Abdullah was employed by the plaintiffs as a lorry driver. On 14 June 1976 Buang was driving the plaintiffs’ lorry no Y9321H along Upper Thomson Road. When it reached the 9½ mile stone of Upper Thomson Road, the lorry broke down at the left side of the road, Buang got down from his lorry and went underneath it to repair some mechanical defect. The defendants’ bus no SBS 6308A driven by their servant Wee Chow Soon in overtaking the plaintiffs’ lorry collided with it and in so doing caused the lorry to lurch forward and collide or run over the said Buang Abdullah. As a result of this accident he sustained injuries to which he succumbed.

13. The lorry was parked at the extreme edge of the road. The driver of the bus Wee Chow Soon admitted at the trial that the lorry was parked only eight inches from the kerb. He also admitted to the plaintiffs’ witness Lai Kar Leng, who arrived at the scene soon after the accident, that he was overtaking the stationary lorry and in doing so his bus came into contact with the lorry. According to Sgt Samad Abdullah who investigated this accident, there was sufficient space on the road for the bus to pass the lorry safely. He also found that the rear offside tailboard of the lorry was scratched and that the middle nearside passengers’ door of the bus were dented and scratched. Wee Chow Soon, the driver of the bus admitted in his report made to the police within a few hours of the accident, that while overtaking the stationary lorry the rear left side of his bus hit the right rear side of the lorry. At the trial, Wee Chow Soon denied telling this to the police. In my opinion he was not speaking the truth. He did not impress as a truthful witness. I rejected his evidence.

14. In my judgment, the evidence in this case clearly established that Wee Chow Soon was negligent in overtaking the stationary lorry. He did not give the lorry a wider berth and when trying to pass it the rear left side of his bus collided with the rear right side of the lorry, as admitted by him in his police report and which is also supported by the damage to the two vehicles. Accordingly I found that the death of the deceased was due to injuries received in the course of his employment and which were caused by the negligence of the defendants’ servant Wee Chow Soon.

15. As a result of the death of Buang Abdullah from injuries received in the course of his employment, the plaintiffs were obliged by law to pay compensation to his dependants as assessed under the Workmen’s Compensation Act 1975 (the Act). Compensation was assessed by the Commissioner for Labour under the Act in the sum of $31,514.40. On 16 April 1977 the plaintiffs paid to the Commissioner for Labour the said sum of $31,514.40 by way of settlement of the compensation due under the Act to the deceased’s dependants.

16. The plaintiffs claimed in this action an indemnity in respect of the aforesaid sum of $31,514.40 which they paid as compensation to the dependants of the deceased who died as a consequence of the negligence of the defendants’ servant Wee Chow Soon. This claim was based on the provisions of s 18 of the Act, which provides as follows:

17. Where any injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof —

    1. the workman may take proceedings against that person to recover damages and may claim against any person liable to pay compensation under this Act, but he shall not be entitled to recover both damages and compensation; and

    2. if the workman has recovered compensation under this Act, the person by whom the compensation was paid, and any person who has been called upon to pay an indemnity under sub-s (2) of s 17, shall be entitled to be indemnified by the person so liable to pay damages as aforesaid.

18. It will be seen that when a workman is injured in the course of his employment due to the negligence of a third party, or dies as a result of those injuries, a claim can be made under para (a), either against the employer for compensation under the Act or against the third party for damages under the common law. And under those circumstances, if an employer has been called upon to pay compensation, he is entitled under para (b) to be indemnified by the person liable to pay damages under the common law.

19. In this case, the plaintiffs as employers of the deceased were called upon to pay compensation under the Act. Under s 18(b) of the Act they are entitled to recover the amount they paid as compensation from the defendants for the negligence of their servant Wee Chow Soon.

20. It was contended on behalf of the defendants that a claim against them for damages under the common law would have failed because the deceased had no one dependent on him; his two sons being employed were in no way dependent on the deceased.

21. I rejected this submission. In my judgment the expression ‘shall be entitled to be indemnified by the person so liable to pay damages as aforesaid’ merely identified the person against whom an indemnity can be claimed i.e. the person who negligently caused the injury. If his negligence is established he is liable to indemnify the employer to the extent of the compensation paid by the employer under the Act. Under this Act, a child of a deceased workman is a dependant irrespective of whether such person is actually dependent on the workman’s earnings or not and is entitled to recover compensation under the Act. See definition of ‘dependant’ in s 2 of the Act.

22. The plaintiffs having been called upon by the Commissioner for Labour to pay compensation under the Act, were in my judgment clearly entitled, under s 18(b) of the Act, to recover the amount they paid from the defendants whose servant Wee Chow Soon was solely responsible for the accident which brought about the death of the deceased.

23. It was for these reasons that I allowed the claim of the plaintiffs and entered judgment for them against the defendants in the sum claimed.

Cases

Public Transport Commission of New South Wales v J Murray More (NSW) Pty Ltd 6 ALR 271; X Politos v Sutton Tools Pty Ltd 13 ALR 575; Tickle Industries Pty Ltd v Hann (1972-73) 130 CLR 321; W Cory & Son Ltd v France, Fenwick & Co Ltd [1911] 1 KB 114; The New South Wales Workers Compensation Act; The State of Victoria Workers Compensation Act; Cutsforth & Johnson (1913) 108 LT 138; Dymond v Pearce [1972] 1 QB 496; Woh Hup (Pte) Ltd v China Insurance [1978] 1 MLJ 59

Legislations

Workmen’s Compensation Act 1975: s. 2, s. 6, s. 7, s. 18, Third Sch.

Representation

Loh Boon Huat (Cooma Lau & Loh) for the plaintiff/respondent.

Cheong Yuen Hee (Chan Goh & Co) for the appellants.

Cheong Yuen Hee (Chan Goh & Co) for the defendants.

Christopher Lau Loke Sam (Cooma Lau & Loh) for the respondents.