Singapore: Illegal workers - High Court holds employer liable for injuries to illegal worker

In Md Shohel Md Khobir Uddin v Chen Yongbiao and another [2017] SGHC 109, the Singapore High Court (SGHC) awarded an individual working illegally 80% of the damages claimed for personal injuries suffered as a result of an employers' negligence. In reaching her decision, the learned Judge held that public policy weighs in favour of awarding damages to injured illegal workers. Only where the injury is the direct result of commission of a crime will relief be denied. In addition to discussing public policy considerations, the SGHC provided guidance as to the factors and circumstances which may be taken into account by the courts when apportioning liability between parties in circumstances where the employee's own negligence contributed to his injury.

Background and findings of fact

The plaintiff (Shohel) was a foreign worker engaged by a third party under a work permit. In September 2014, Shohel was injured by falling into a hole whilst carrying a heavy metal plate at a worksite at which the second defendant (Dongwu Steel) was operating as a sub-sub-contractor. The first defendant (Chen), a director of Dongwu Steel, was alleged to have instructed Shohel (and one other) to work on the worksite on the day that Shohel was injured. Shohel claimed damages from Chen and Dongwu Steel in respect of his injury.

Chen's evidence was that Shohel and the other worker had entered the entered the worksite without his consent. However, the SGHC found Chen to be an unreliable witness. On the evidence, Shohel was found to have been engaged by the defendants to work at the site – he was essentially doing some extra work on his day off, albeit illegally.

Public policy and liability of employers to illegal workers

Any contract of service entered into by the defendants with Shohel would have been illegal under the Employment of Foreign Manpower Act. The defendants argued that public policy therefore militated against imposing a duty of care on them as employers. The judge was unpersuaded by this view.

As held in Ooi Han Sun v Bee Hua Meng [1991] 1 SLR(R) 922, "the fact that the plaintiff is involved in some wrongdoing does not itself provide the defendant with a good defence". The SGCH in Shohel noted that the only exceptions would appear to be where the plaintiff's injury was directly incurred in the course of a commission of a crime. Shohel's illegality "merely provided the context for the defendants' negligence". The illegality did not, therefore, provide the defendants with a defence.

The SGHC explained that finding that public policy militated against the imposition of a duty of care "might engender a belief among employers that they can discriminate against such employees whom they choose to hire despite knowing that it is illegal". This would run counter to the policy of protecting those workers at the workplace. Indeed it may even encourage or embolden employers in employing foreign workers illegally, knowing that the employer would be absolved from liability to compensate any such worker who might be injured at work.

The scope of an employer's duty of care to employees

The common law duty of employers vis-à-vis employees is three-fold: to provide a competent staff of men, adequate material, and a proper system and effective supervision. This was the duty incumbent upon the defendants at the time that Shohel suffered his injury.

The fact that Dongwu Steel was merely a sub-sub-contractor at the worksite did not preclude a finding that the defendants had breached their duty of care to Shohel. The employer remains responsible for the safety of his employees even if they are sent to work at a site controlled by others. However, the SGHC did find that there was fault on the part of both Shohel and the defendants, and liability would therefore have to be apportioned between the parties.

Contributory negligence in personal injury claims

The following factors weighed in the mind of the SGHC when determining the appropriate apportionment of liability between Shohel and the defendants:

• Shohel was performing the task in daylight and the hole was of a sufficient size for a person to fall into (the implication being that Shohel would have noticed the hole if he had kept a proper lookout);
• Shohel was sent off to work immediately at a worksite with which he was unfamiliar, so he was most likely unaware of any openings in the ground;
• Shohel was not given any safety briefing or instructions on how to perform his task, nor was he supervised orprovided with any safety equipment or gear;
• the metal plates were large, heavy and quite difficult to carry, which would have made it more difficult for Shohel to keep a proper lookout when he was walking; and
• there was no evidence that Shohel had any experience in performing work of such nature or that he had gone for any courses relating to the type of work performed at the worksite.

The SGHC noted that the apportionment of liability is "more an exercise of discretion than clinical science" and that the exercise should be applied in a "rough and ready" manner. Two key considerations are: (i) the relative causative potency of the parties' conduct, and (ii) the relative moral blameworthiness of their conduct.

Taking into consideration all the circumstances of the case, the SGHC found that Shohel was contributorily negligent to the extent of 20%. The defendants were therefore liable to bear 80% of the liability for the accident.

Key takeaways

This case demonstrates that employers cannot escape liability for personal injuries to their employees by pleading illegality, except in the very limited circumstances where the injury directly results from the commission of a crime.

This case highlights the increasing focus on workplace safety and health and an employer's obligations to its employees in this regard.

In order to minimise the risk of breach of duty of care to employees, employers should ensure that they provide employees with adequate training, appropriate materials, and a proper system and effective supervision. Employers should also be aware of their obligation to report workplace incidents as discussed in our recent article.

Written by Fatim Jumabhoy (Partner), Tess Lumsdaine (Senior Associate), Sarah Yazid (Associate) and Zoe Wilson (Trainee)