Remove government immunity for negligent SAF members

by David

It is indeed sad to learn that yet another NSF from the Army had died while doing National Service.

Rightly, Mindef and the SAF had jointly announced that an independent Committee of Inquiry (COI), consisting of members outside both organizations, be convened to investigate the unfortunate demise of Corporal Dave Lee, to find out the contributing factors and to make recommendations for any inadequacies.

6 years ago, many Singaporeans mourned the death of Private Dominique Sarron Lee who also died in a training exercise. A similar COI was convened to investigate the cause of death and it was established that the platoon commander in charge and the safety officer were negligent. When the family of the late Private Lee tried to seek clarifications from Mindef/SAF as to what punishment was meted out, they were informed only that the platoon commander was redeployed to a non-supervisory appointment in the SAF.

Dissatisfied with the vague answer, the family attempted to sue the platoon commander, safety officer, SAF under 2 causes of actions – first for breach of contract and second under the tort of negligence. Both causes ultimately failed. The Court agreed with the AGC that there was no mandatory contract between the SAF and full-time national servicemen. Furthermore, under the Government Proceeding Act Section 14, the SAF cannot be liable in tort while performing their duty even if there was negligence.

Would it be deja-vu all over again if in the upcoming COI for CFC Dave Lee, negligence by army personnels is listed as a contributory factor to his untimely demise? Is it still just and proper that the government continues to provide immunity to SAF members from civil suits even though they were negligent in their duties?

Editor’s note – Note that the family of Private Dominique Sarron Lee only proceeded to sue the two officers and SAF after SAF blocked the family’s attempt to seek more information through legal means and that mediation between the family and SAF failed. SAF had declined to share what punishment was given to the two officers, detail findings of the COI and the changes to the training and safety procedures after Pte Lee’s death.

In the mediation after the discovery lawsuit was dismissed, the family only asked for SAF to reimburse the cost for Dominique’s tomb (about $34,000) and for the Minister to apologise for his death. SAF had offered a sum of money to the family so as to have the family to stop pursuing the matter, however, the family rejected the offer as the officer from SAF said the Minister of Defence will not be apologising for the death of Pte Dominique Lee.

TOC had written to Mindef for their say on the matter, but they had declined to issue any comment on this.

Defence Minister: Section 14 continues to serve a vital purpose as intended

Following the verdict of the case, Non-Constituency Member of Parliament Dennis Tan suggested through a motion in Parliament that section 14 of the GPA should be amended to allow civil liability in the tort of negligence in respect of a member of the armed forces or the Government for death or personal injury during training as a result of any conduct by any officer during training that conspicuously violates safety protocols, procedures, and regulations.

In response to the NCMP’s suggestion, Defence Minister Ng Eng Hen said,

“Each country will have to decide how it provides its public security agencies as a whole and their personnel – in our case the SAF, SPF and Civil Defence – the confidence to train and perform their duties diligently without this fear of litigation against them. Note that section 14 does not accord any of our servicemen any protection against criminal proceedings or civil litigations brought by civilians for compensation or damages, which I have already stated earlier. It only precludes legal suits brought against the Government – the SAF in this case – or its individual servicemen by servicemen and their Next of Kin themselves.

Note that as Kannan JC highlighted, that the immunity conferred by section 14 does not extend to acts that amount to an intentional act committed by an SAF member, which is separate and independent of the member’s duties, for instance, punching his superior.

For Singapore, section 14 continues to serve a vital purpose as intended. SAF soldiers train realistically, conduct many operations overseas. Because they train realistically, without the commanders or the individual soldiers themselves in each instance wondering if their organisation or they themselves could be sued by other servicemen, when injuries and fatalities occur, removing section 14 is not likely to improve outcomes as the Member says, and indeed, may do us harm.”