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Recoverability Of Damages In The Law Of Tort By A Foreign Employee

Introduction

In what must surely be considered to be a sound decision – both as a matter of law and moral principle – the Court of Appeal held that the position of a “foreign employee” is no different from that of a “local employee” insofar as the recovery of special damages arising from a tort is no different (subject to the principles of double recovery).

A link to the apex court’s decision in Minichit Bunhom v Jazali bin Kastari and another [2018] SGCA 22 (the “Judgment“) may be found here.

Judge of Appeal Steven Chong (who delivered the judgment of the Court) pithily put the issue for determination in the opening paragraph of the Judgment:-

Consider an accident involving two workers who were injured following a road accident for which the driver of the vehicle was wholly responsible. Both incurred similar medical expenses and brought separate legal proceedings to recover damages, including the medical expenses, against the negligent driver. One worker was a local while the other was a foreign worker. The foreign worker’s employment, unlike the local worker, was governed by the Employment of Foreign Manpower Act (Cap 91A, 2009 Rev Ed) (“EFMA”). Even though the employer had initially paid for the medical expenses in both cases, it was beyond question that the local worker would be able to claim for his medical expenses against the negligent driver. The position in respect of the foreign work was however disputed. Should the employment status of the injured worker affect his right of recovery in respect of the medical expenses against the negligent driver? This was, in essence, the issue before us.”

[emphasis added]

Does An Employer’s Obligation To Bear A Foreign Employee’s Medical Expenses Preclude A Subsequent Claim By The Foreign Employee In The Law of Tort Against The Tortfeasor?

The answer to the question, underlined in the quote above, was a resounding “No”, as evident from paragraphs [41] to [43] and [48] of the Judgment, where the Court held as follows:-

“…we did not think that the broad scope of an employer’s obligations relating to a foreign employee’s medical expenses would in itself have any bearing on the separate question of whether a victim-foreign employee could recover the medical expenses occasioned by a third party tort from the tortfeasor. The statutory provisions in the EFMA and the EFMR were designed to ensure that, as between an employer and his foreign employee, the employer bore the obligation to provide for the employee’s upkeep and maintenance. There are sound policy reasons behind this position, not least for the protection of the foreign employee as well as to ensure that the ultimate burden for the upkeep of foreign workers should not fall on the State (see [47] below).

42 However, nothing in the EFMA or the EFMR suggested that they were intended to abridge the recovery of medical expenses as between a tortfeasor and the victim. As we alluded to above, the employment and the tortious relationships are wholly distinct and they implicate different policies and principles.

43 Indeed, it could not have been Parliament’s intention for the EFMA or the EFMR to affect not only the employer’s obligations relating to a foreign employee’s medical expenses, but also the entitlement of a victim to seek the recovery of such medical expenses from the tortfeasor at common law.

48 In our judgment, where a third party tortfeasor was liable for the medical expenses incurred by a victim-foreign employee as a result of the former’s tortious conduct, neither the EFMA nor the EFMR applied to exonerate the tortfeasor or to shift that duty onto the employer by precluding the victim’s right of recovery against the tortfeasor. Indeed, nothing in the text, history, or purpose of the EFMA and the EFMR suggested that the legislation had any bearing on the recoverability of the medical expenses as between the victim and the tortfeasor. This submission stemmed from an unfortunate misunderstanding of the purpose and object of the EFMA and the EFMR. The duty of the employer to provide medical coverage for his foreign employee is an incident of the employment relationship and hence governed by the EFMA and the EFMR. This however was a distinct issue from the entitlement of the victim to seek recovery from the tortfeasor, which is an incident of the tortious relationship and hence governed by the common law.

[emphasis added in bold and underline]

Are The Costs & Expenses Of Medical Treatment Recoverable By A Foreign Employee From His Employer, Where The Injuries Suffered By The Foreign Worker Are Due To The Tortious Acts Of A Third Party?

Another issue which arose for determination was whether the a foreign employer’s obligation to provide “medical treatment” for the “upkeep and maintenance” of a foreign worker depended on whether the injuries suffered by the foreign worker were caused with or without the involvement of a third party tortfeasor.

The reason the issue came up for consideration is due to the fact that the unreported Singapore High Court decision of Sun Delong v Teo Poh Soon and another [2016] SGHC 129 (“Sun Delong“) at [25] appeared to support such a distinction, i.e. that:-

“[e]mployers must provide “medical treatment” to maintain the health and well-being of their foreign employees, but when their employees… suffer serious injuries due to the tortious conduct of third parties, it cannot be the case that liability to pay for treatment for those injuries lies with the employers while the tortfeasor(s) are absolved from their responsibility to pay damages for the wrong that they have done. In such situations, the medical treatment required by the employee goes beyond that for his regular “upkeep and maintenance” and, accordingly, falls outside the scope of Condition 1.”

[emphasis added in bold and underline]

The Court of Appeal disagreed with the above-quoted portion of the judgment in Sun Delong and departed from the same, holding that an employer’s obligations under the Employment of Foreign Manpower Act and the Employment of Foreign Manpower Regulations imposed independent obligations on the foreign employer.

Consequently, the Court of Appeal held at [69]:-

The applicability of Condition 1 (and other obligations in the EFMA and the EFMR) was not dependent on the presence or absence of any third party tortious conduct. Rather, these obligations independently applied in either case as between the employer and the victim-foreign employee; the point was simply that they had no bearing on the latter’s entitlement to recover the medical expenses occasioned by a third party tort from the tortfeasor.”

[emphasis added]

Conclusion

The Judgment is indeed a welcomed one as there ought to be no distinction at common law between the rights of employees, whether they be local or foreign.

The statutory scheme (the EFMA and the EFMR) imposing obligations on employers to provide and undertake certain basic responsibilities vis-a-vis their foreign employees should not and does not affect the rights of those foreign employees under general law.

 

 

 

 

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