The High Court issued a timely reminder to injury lawyers that they should be “carefully weighing the relative pros and cons of a Wica claim vis-a-vis a common law claim” before they “advise an injured worker on the appropriate course of action”.

Judicial Commissioner Dedar Singh Gill said this when ruling against a worker, Mookan Sadaiyakumar, who had several fingers crushed in a workplace accident in August 2016, reported the Straits Times on 28 September 2019 (paywall).

More details about the accident and the judgement can be seen below.

“Wica” is the common acronym for Work Injury Compensation Act. Under this law, employees injured in workplace accidents enjoy protection and compensation on a no-fault basis. Based on the severity of any permanent residual disability, a compensation amount is determined (based on a published schedule) and is paid out by an insurance company from whom the employer would have purchased a policy, as required by law.

Under Wica, the employee need only show that the accident was work-related. It does not matter whose fault it was.

Injured workers often take the common law route

TWC2 has seen thousands of injury cases over the years. The great majority of injured workers would have signed up with a lawyer before coming to us. We have noticed that these lawyers they go to are of a limited number, and who tend to specialise in work injury cases. For convenience, we call them “injury lawyers”.

In a typical case, injury lawyers would help injured workers file a Wica claim with the Ministry of Manpower (MOM). When the Wica process is advanced enough for a compensation amount to be proposed, quite of number of such Wica claims are then withdrawn. The workers tell us that they’re “going to common law”. Almost surely, they are doing so on the advice of their lawyers, since low wage workers would know next to nothing about law themselves.

What “going to common law” means is that a case is filed in the judicial courts to sue the employer for the accident and resultant disability. However, a key difference from the Wica process is that now the employee has to prove that the employer bore responsibility for the accident. It is no longer on a no-fault basis.

As can be seen in Sadaiyakumar’s case, if the worker cannot prove that the employer was responsible, then the worker loses his case entirely. He may even have to bear the employer’s legal costs.

We fully agree with the High Court’s reminder that “The worker should not view the common law claim as a ‘game of chance’ to gain more in the event of a successful claim. He will end up with nothing, despite having suffered an injury, if his claim cannot be established.”

At the same time, we also need to understand the financial pressures that workers are under. They would have paid thousands of dollars to “buy” their jobs — so absurdly high are recruitment costs — and they would need to be on the job and paid properly for perhaps 24 months to earn enough to recoup this initial expense. If they were to meet with an accident some months into the job, they would be unable to work (thus, no income) and be staring at a huge financial loss. Many would have borrowed the money to pay for their jobs, and creditors would be coming after their families.

Depending on the severity of the injury, the compensation amount offered under Wica may seem too little to pay off the debt. There is thus a strong bias to try for a larger compensation via common law, especially if their lawyers suggest such an option. The intricacies of legal argument and how they will have to prove employer negligence or malfeasance are things few workers can foresee or understand; they may be star-struck by whatever numbers (in possible winnings) their lawyers mention in passing. Even if lawyers stress the numbers are speculative, someone in dire financial straits would not be in the right frame of mind to weigh properly. It is thus on the shoulders of lawyers to be extremely prudent when suggesting the common law route, and they must be diligent in assessing the merits of the case.

The gist of the case

As reported by the Straits Times,

The Indian national worked for recycling company Kim Hock Corporation, which burns waste wood in boiler furnaces to produce energy.

Ash from the furnace falls through rotary valves, which may stall when metal objects get lodged in the housing of the valves, the court heard. Workers are sent to remove the objects before the furnace is restarted.

The plaintiff alleged that on the day in question, his supervisor told him a particular valve had tripped. He said he opened the chamber and was removing a short steel bar when the valve suddenly “came back to life”, crushing his fingers.

The employer, however, contended it was not possible for a tripped valve to come back to life unless a series of steps were taken.

The supervisor said the worker had gone to the wrong valve, which was unfortunately still in operation.

The case had first gone through a District Court where the judge found that Sadaiyakumar had injured himself through his own carelessness and had to bear 50 percent of the responsibility. Explaining why the employer also had 50 percent responsibility, the District Court judge said the employer should have had an automatic tripping system to stop the machine when a chamber is opened.

Both sides then appealed.

From the Straits Times’s report of the High Court outcome:

The judicial commissioner allowed the employer’s appeal, saying there was insufficient evidence to prove it had been negligent.

He noted there was no evidence that industry practice required such a mechanism to be installed. There was also no indication such a mechanism was available and the employer failed to obtain it, he said.

The judge said: “It is with a heavy heart that I have ruled against the plaintiff’s claim.”

The written judgement of the High Court can be found at this link.