Singapore’s Supreme Court building also houses the High Court
Unlike Rahman Khalilur’s case (see Injured Khalilur’s employer insisted that no accident occurred, denying him compensation) when TWC2 had to help him overturn a adverse decision by the Assistant Commissioner for Labour (ACL) over his work injury claim, in the case of Md Sharif, the ACL’s decision and compensation award was in his favour.
But the employer and insurer then appealed the decision to the High Court. And so, like it or not, lawyers had to be found to defend the case. Not only are migrant workers with their extremely low salaries unable to afford high-powered lawyers, in the case of Md Sharif, he was deceased.
The Work Injury Compensation Act encompasses work-related deaths too
The family and next of kin were in Bangladesh and largely unable to speak English but fortunately, there was a brother, Akter, who was also a migrant worker in Singapore, and he could represent the family when it came to giving instructions to the lawyers.
As the details of this case will show, the appeal was highly technical, proceeding on points of law. Without an NGO like TWC2 helping Akter and the family, the family might not have known what to do or understand what was going on.
Nearly all the facts were uncontested except one crucial one: What was the likely cause of death? This was the point of contention as Sharif didn’t pass away until a month after the accident. The sticking point was how to interpret the evidence to arrive at a balance of probabilities as to causation.
On Friday, 9 October 2015, Md Sharif Hossain Rana Abdul Malek, then aged 26, was working at a construction site where five blocks of residential apartments were being built. A slender piece of timber estimated to be about 0.38 metres long fell from an unknown height and hit him firstly on his helmet and subsequently on his back and shoulder. Still conscious, Sharif was taken to the Gleneagles Singapore Sports and Orthopaedic Clinic by his construction site supervisor.
Although he wasn’t warded, Sharif had regular reviews by doctors over the subsequent weeks. Mostly, he complained of pain and was unable to resume normal work.
From around 5 November (nearly a month after the accident), Sharif began to experience repeated vomiting.
On 7 November, he was seen at Island Orthopaedic Consultants where the doctor raised the possibility of indigestion. He changed Sharif’s pain medication.
Yet, Sharif’s vomiting continued all afternoon, and that evening, co-worker Touhidul and brother Akter took Sharif to Changi General Hospital.
At the hospital
Doctors at the hospital did a series of tests, exploring several possibilities for Sharif’s symptoms, starting with meningoencephatlities, on which presumption antibiotics were prescribed. Yet initial test results came back unremarkable, even though Sharif was drowsy, agitated and disorientated.
The next day (8 November), seizures began. The term “Status Epilepticus” (repeated seizures) would apply to his condition. He was moved to intensive care where not long after, he began displaying signs of tachycardia (rapid, abnormal heart rhythm). As reported by Changi General Hospital,
This was followed later by shock with hypotension (low blood pressure) while on medication to control the rhythm. At 1530 hours, he had ventricular tachycardia requiring electrical defibrillation and remained in shock requiring vasopressors (blood pressure elevating medication) to support his blood pressure.
A CT scan showed diffuse cerebral oedema, consistent with hypoxic ischaemic injury – that is, his brain was swelling with fluid, likely the result of blood and oxygen deprivation.
Sharif’s mental state was poor, and within days, he exhibited multi-organ failure. With the consent of brother Akter, life support was withdrawn on 13 November and Sharif passed away.
An autopsy was performed. No external injuries were found, but a post-mortem CT scan showed a detachment of the spinous process of the T1 vertebra from the vertebral body.
A blood test result came back after Sharif’s demise. The sample had been taken on 9 Nov 2015 but the result only came back on 18 November. It showed a result positive for Leptospira. The hospital report stated that the possibility of recent Leptospiral infection should be entertained.
Six months later, a Coroner’s report was issued. The stated cause of death was “Hypoxic Ischaemic Encephalopathy following Status Epilepticus consistent with Spinal Injury.”
Explaining his findings, the coroner wrote:
The spinal injury sustained by Mr Sharif was also found likely to be the underlying cause of this status epilepticus. Mr Sharif had developed several long periods of epileptic fits that prevented him from breathing and these could have caused the brain injury that resulted in his death.
Further on, the coroner wrote,
The evidence points to Mr Sharif being struck by a piece of timber that had fallen from unknown height…. The extent of Mr Sharif’s injuries only became evident much later, after he was hospitalised at Changi General Hospital, and the severity of his symptoms became more pronounced…. The pathologist’s clarification also revealed that the injuries found on Mr Sharif, were consistent with the impact…
He ruled that the death was an unfortunate industrial misadventure.
On his own, Akter engaged lawyers to file a claim under the Work Injury Compensation Act (WICA). TWC2 would later learn that in fact no filing was made.
More than two years passed before Akter brought the matter to our attention in December 2017, appealing for assistance. We then helped him file a WICA claim.
In June 2018, the Ministry of Manpower issued a Notice of Assessment awarding the next of kin (Sharif’s parents) $170,000 in compensation. Almost immediately, the employer, Capstone Engineering, and insurer objected, denying that Sharif’s death was caused by a work-related accident, and so the matter had to be heard before an Assistant Commissioner for Labour (ACL) – in this case, Han Cher Kwang. Such hearings are colloquially known as “labour courts”.
TWC2 then had to help Akter and the family find a lawyer to represent them.
Nearly a year passed before the hearings were finally held (May 2019). The employer and insurer (the “Respondents”) argued that the Coroner’s report which contained the Coroner’s findings as to cause of death should not be admissible in evidence and that Md Sharif did not die because of any injury sustained from the accident that took place on 9 October 2015.
In support of their position contesting the stated cause of death, the Respondents argued that since traces of Leptospira were found in Sharif’s blood, it should not be automatically assumed that it was the accident which caused Sharif’s death. In the absence of such a presumption, the claimants (Sharif’s next of kin) must then be asked to prove a chain of causation between accident and his death.
The Respondents brought in a Dr Leo to give evidence. While he described how symptoms of Leptospirosis infection could be similar to the symptoms that Sharif displayed, Dr Leo was not an infectious diseases specialist, but an orthopaedic surgeon. In his evidence, he also conceded that the form of Leptospirosis infection with neurological symptoms (“Neuroleptospirosis”), relied on by Respondents for their argument, was extremely rare.
In June 2019, the ACL delivered his decision. He found that the medical evidence submitted by Respondents were
… far from conclusive and insufficient to rebut the statutory presumption that had arisen in favour of the Claimants. Dr Leo could not and indeed did not, dismiss or eliminate the possibility that the Deceased’s spinal injury could evolve or develop into [Status Epilepticus].
(above is from the ACL’s Grounds of Decision released in December 2019)
This presumption as to cause of death, it should be noted, is buttressed by the Coroner’s report. For this reason, the other part of the Respondents’ case was about how the Coroner’s report should not have been admitted into evidence. They cited Section 45 of the Coroner’s Act which says
No oral testimony or conditioned statement admitted under section 33 in the course of an inquiry shall be admissible in any subsequent judicial or disciplinary proceedings as evidence of any fact stated therein…
On this question, the ACL ruled that
Section 45 of the [Coroner’s Act] stated only that oral testimonies and conditioned statements are inadmissible for certain subsequent proceedings. It does not explicitly state that the Coroner’s Certificate is inadmissible….
Concluding, the ACL found that on balance of probabilities, Md Sharif had died from a work-related accident. He ordered that compensation of $170,000 be paid.
Appeal to the High Court
The Respondents then appealed the ACL’s decision to the High Court. Once again, TWC2 had to help ensure that Akter and the family had legal representation to defend their interests.
Appeals must be based on points of law, and thus the story gets rather technical from this point on.
Essentially, the Respondents once again argued that the Coroner’s Certificate should not have been admitted into evidence and that the ACL was wrong to have done so. Secondarily, the Respondents argued that even if the Coroner’s Certificate were admissible, it did not by itself constitute sufficient evidence to prove the chain of causation from accident to Sharif’s death.
If readers are interested in the fine details of the arguments, click the icon at right to download the High Court judgement.
As a brief summary, the High Court ruled that the ACL was correct in law to admit the Coroner’s findings. As for the chain of causation, the judge wrote:
It should also be remembered that in the other documentary evidence which was before the [ACL], there was nothing to contradict or refute this finding of fact by the Coroner [that Sharif died from a brain injury consistent with spinal injury following from impact of falling timber].
… While [a medical report] alluded to the ”possibility of recent Leptospiral infection“ being “entertained”, there was nothing in the report which stated or even suggested that this “possibility” could in turn be a possible cause of the encephalopathy and status epilepticus.
The High Court thus dismissed the Respondents’ appeal with costs.