Security officer rejects injury payout of more than 6 months' salary to sue employer

SINGAPORE: A security officer who rejected a work injury compensation worth more than six months of her salary sued her employer for negligence instead. In the end, she lost the suit after a judge found her case “wholly meritless”.

District Judge Evans Ng dismissed Madam Nirmala Thangavellu’s claim against her employer, Acestes, in a judgment dated May 25, finding that she had failed to prove that the company breached its duty of care.

The judge also highlighted the risks faced by workers who withdraw claims under the Work Injury Compensation Act (WICA) in favour of court action, noting that unsuccessful employees could end up with no compensation at all and be liable for legal costs.

Mdm Nirmala was a security officer deployed to a condominium along Fernvale Road in Sengkang when she injured her ankle on Aug 4, 2021.

While stationed at one of the condominium’s entrances, she alleged that she tripped and hurt her ankle while dealing with a delivery rider who refused to stop and provide his particulars.

She added that she tried to “chase” the deliveryman but lost her footing on uneven ground and injured her ankle.

A relevant portion of a closed-circuit television camera footage was produced in court during the trial, showing Mdm Nirmala walking normally towards a door before making an about-turn.

As she continued walking, her right foot appeared to roll outwards, causing her to lose her balance. As she was falling, she extended her arms to brace herself before regaining her balance and standing up to walk away.

A claim under WICA was later made, and the Commissioner for Labour assessed compensation for her injury.

The court noted that the assessed amount was more than six months of Mdm Nirmala’s salary at the time.

However, she objected to the assessment and appeared to withdraw the claim before commencing a negligence suit against Acestes more than a year later.

The reason stated in the notice of objection was given as “settlement under WICA is insufficient”.

NO PROOF THAT COMPANY BREACHED DUTY OF CARE

In his judgment, Judge Ng said that to succeed in a claim for negligence against an employer, it was not enough for an employee to “recite the truism that her employer owes a duty to take reasonable care of her safety”.

“The employee must also prove, among other things, that the employer breached the duty of care,” the judge said.

He pointed out that Mdm Nirmala’s evidence was limited to the claim that “proper safeguards and support” were not put in place to prevent such accidents, and that she did not specify what those “safeguards and support” were.

In questioning Acestes’ sole witness, operations manager Haresh Syed Ismail, Mdm Nirmala’s lawyers did not ask him about Acestes’ alleged breach of duty.

“No effort was made to pin down a precise act or omission of (Acestes) that was supposed to be the breach of duty,” Judge Ng noted.

“Mdm Nirmala’s lawyers simply did not attempt to prove that (Acestes) breached its duty of care.”

The judge said he could not identify any material that could “plausibly support an allegation of breach of duty”, even after taking Mdm Nirmala’s case at its highest.

She had not been exposed to any risks that were different from what a condominium resident would have encountered, the judge added.

He found that Mdm Nirmala had been walking quite slowly in an ordinary manner and that she had not provided any evidence to support her “bare assertion” that the ground was uneven.

WICA CLAIM OR LAWSUIT

The judge noted that WICA established a scheme from which employees may obtain compensation for workplace injuries.

“Because the employee does not have to prove fault on the part of his employer to be awarded compensation, outcomes under WICA are relatively fast and predictable,” he said.

If an employee chose to seek more serious damages than the assessed compensation, they could withdraw their WICA claim and file a negligence suit.

However, he cautioned that court action came with a risk. If an employee failed in the suit, they would often be unable to resume their WICA claim due to statutory time limits.

If the court action were initiated more than a year after the accident, the court would not have the power to assess and award the compensation that the employee could have received under WICA.

“(The employee) could end up empty-handed and be liable to pay costs of the unsuccessful action,” Judge Ng said.

Noting that the compensation assessed under Mdm Nirmala’s WICA claim amounted to more than six months’ salary, Judge Ng said: “One may wonder why she submitted her notice of objection in favour of engaging in wholly meritless litigation”.

The judgment stated that Mdm Nirmala did not read or speak English. During the trial, she said that the notice of objection had been read to her by “office personnel at Tekka”, who asked her to sign it, and she simply complied.

There was no clarification on what “office personnel at Tekka” meant since it was not a relevant issue in this case, the judge added.

“It is unclear if they had sold her the charm of a gamble. Employees should not be encouraged to bring speculative actions in court,” he continued.

The judge also said that lawyers are obliged to advise injured workers on the appropriate course of action to take by carefully weighing the advantages and disadvantages of a WICA claim against a negligence lawsuit.

Lawyers should only recommend court action if there is enough evidence for the case at first sight or assessment.

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