On Monday (11 Feb), Worker’s Party secretary-general Pritam Singh, in proposing the amendment of Section 14 of the Government Proceedings Act (GPA), branded the Ministry of Defence (MINDEF)’s “zero-accident mindset” in the wake of reservist Corporal First Class (NS) Aloysius Pang’s death at the end of last month as “unrealistic” and “wishful” even in “industries with notoriously strict safety standards”.
Two years ago, Non-Constituency Member of Parliament Dennis Tan had similarly motioned the amendment of s.14 of the GPA to waive the immunity of the Singapore Armed Forces (SAF) commanders and MINDEF in the event that a personal injury or death occurs as a result of an act or omission on the part of any officers during training that “conspicuously violates safety protocols, procedures, and regulations”.
The motion was made on 9 Jan 2017 following the death of Private Dominique Sarron Lee in 2012, who had passed away “from acute allergic reaction to zinc chloride due to inhalation of zinc chloride fumes” whilst carrying out “an urban training exercise involving smoke bombs in a confined area”.
The coroner’s inquiry’s findings revealed that “more smoke grenades than necessary were used during the exercise, but could not ascertain whether the acute allergic reaction was due to concentration and/or the mere exposure of zinc chloride fumes”.
“An example would be,” said Mr Tan during a Parliamentary motion, “if an officer or instructor fails to comply with Training Safety Regulations (TSR) or any training safety protocols recommended in any SAF lesson plans or, manuals”.
“There should be a clear distinction between training and operations for purposes of liability under section 14 GPA. Such an amendment to the GPA can better protect our troops and better enhance public confidence in the SAF in the area of training safety.
Mr Tan highlighted that he had previously “filed a Parliamentary Question” to Defence Minister Ng Eng Hen “on issues relating to the death of Private Dominique Sarron Lee during SAF training […] as to whether the Government will consider amending section 14 of the GPA to allow certain situations of liability instead of the current absolute exemption from liability for all claims attributable to service”.
“I gave a few examples for consideration: the waiver can be limited to actual operations and should not apply to training, or when a death or personal injury occurred as a result of omission from observing TSRs, or when the negligence of an officer has some causal connection with the death or personal injury.
“I had asked whether this law could be amended at least to reduce the possible moral hazard of any officers not taking sufficient care and caution in abiding by established TSRs during training exercises,” he added.
He acknowledged that while “tough and realistic training is important for the SAF”, training “occurs in a controlled environment by design, unlike operations that by their nature have higher levels of risk, uncertainty, and unpredictability”.
“Managing the training environment ensures that not only learning takes place, but that service personnel do not face unnecessary physical risks. Our servicemen must remain safe, healthy, fit and ready for operations when called,” said Mr Tan.
He added that “the SAF has always recognised this distinction between training and operations”, hence the “Training Safety Regulations (TSR) and other safety directions in lesson plans”.
“Training situations are and should remain qualitatively different from operational circumstances. It is important not to conflate these very different situations. Operations are not, at their core, meant for practice and learning,” he added.
Commanders should be held accountable for violation of “established protocols”
Mr Tan emphasised that “training conditions have clear safety codes laid out, and commanders have a duty to comply” with such codes.
Consequently, he added: “When commanders violate established protocols, they are sending out a signal that they do not care enough about measures put in place for protecting those under their charge, that they are willing to put their men at unnecessary risk.
“The SAF should not tolerate, much less condone, such behaviour, and it is important to make this clear both within its ranks and to the public,” he said.
While Mr Tan agreed with Dr Ng that the latter was correct in saying that “a civil suit is not trivial”, he argued that the gravity of a civil suit is “precisely why there are circumstances where civil claims should be allowed” in cases involving the violation of safety procedures in the controlled environment of NS training.
“When a training accident occurs because of clear, and especially deliberate breaches of established safety codes by officers responsible for conducting the training or recklessness as to its compliance, there should be channels for civil liability, just as there are channels for criminal liability.
“There may be situations that are not criminal but where victims and their families should still be able to seek legal recourse directly.
“I am not calling for a blanket civil liability for accidents – just for accidents during the controlled environment of training,” he stressed.
“Knowledge of the potential seriousness of consequences can encourage those responsible for the lives of our women and men in uniform to be more careful and treat their duties more seriously, and be less cavalier about non observance of TSR or safety considerations in lesson plans,” argued Mr Tan, adding that it “reduces the moral hazard by making the gravity of consequences more evident”.
He added that commanders who have reasonably and adequately adhere to safety protocols and regulations in training should not be worried about being held for civil liability.
“One common claim about the Singapore legal system is that clear, consistent and proportional sanction deters violations of the law. Allowing civil liability for violations of training protocol is an extension of this principle.
“The point about deterrence is that civil liability can be quite easily avoided by adherence to established safety regulations governing the type of training in question.
“Even if an accident happens, and they unfortunately do, once commanders have shown that they have taken all necessary precautions and have complied with TSR requirements, they should not be held responsible. They should not have to worry about any civil liability,” he said.
Citing Dr Ng’s statement in which he claimed that “punitive actions have, in the past, been taken against errant officers by way of criminal proceedings or proceedings under military law” via “court martial proceedings or summary trials”, Mr Tan argued that “such actions are very different from the rights of an injured serviceman or the family of a deceased serviceman having to commence a civil claim in negligence against any errant officer or the SAF”.
This is because, according to Mr Tan, “the serviceman or his family has no say whether criminal proceedings, court martial proceedings or summary trials are to be commenced”, and such proceedings or trials are “completely at the discretion of MINDEF or AGC”, in contrast to a right to a civil claim “where the decision to commence action lies with a serviceman or his family”.
“By allowing them to have the right of suit, once the suit is commenced, the courts will decide on liability based on the evidence and arguments that are presented before it. The defendants have the right to defend themselves.
“The injured serviceman or the family of the serviceman bringing the suit still has the burden to prove his or their case as is required for all civil cases. Ultimately, it is up to the civil courts to decide based on the merits of the case,” he said.
The question of fair compensation to the deceased soldier’s next of kin was also brought up by Mr Tan.
Citing MINDEF’s press release of 7 March 2016 regarding “an offer of compensation to Pte Lee’s family which was rejected”, Mr Tan said that despite MINDEF’s offer being “generally two to four times that of amounts provided under the Work Injury Compensation Act (WICA)”, the awards under WICA are “usually less than awards under common law negligence claims”.
Mr Tan concluded: “Allowing civil proceedings is not about pinning guilt on particular individuals, which is ironically the case with the current regimes used by MINDEF, such as summary trial, court martial or criminal proceedings.
“It is about giving a serviceman or his family an unfettered right of recourse not dependent on an organisation which might otherwise have been vicariously liable for the tort but for the current statutory exemption from liability,” he said.
Hence, said Mr Tan, “the independence of the judicial process through the civil courts will help to prevent any undesired impression or accusation of cover-up and underscore that MINDEF or the SAF are above board”, and such “legal scrutiny” will build “public confidence” in MINDEF and SAF in turn.
“Section 14 provides us that confidence for our commanders to train realistically”: Defence Minister Ng Eng Hen
Defence Minister Ng Eng Hen, in his response to Mr Tan’s motion, said that while the latter was “quite right” in stating that “section 14 exempts the Government and servicemen from being sued”, he argued that “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”.
“When these safety breaches do occur, we want to make sure that those responsible are punished. And we certainly do not condone these acts.
“It is not fair to paint even those who have not followed Training Safety Regulations (TSRs), as some do it out of mischief or negligence, and they are taken to task if they are reckless.
“Some do it for a variety of reasons, so there is a spectrum. But if they have been reckless or negligent, they are not protected from criminal prosecution, even when they are conducted by servicemen in the course of duty,” said Dr Ng.
Citing Judicial Commissioner (JC) Kannan Ramesh’s judgement in Estate of Lee Rui Feng Dominique Sarron, deceased v Najib Hanuk bin Muhammad Jalal, Dr Ng said that the judge “had recognised that” s.14 GPA “was enacted to place the SAF in a special position in recognition of its heavy responsibility of safeguarding the defence of our country, and the high degree of risk intrinsic to military training”.
“Kannan JC added that the consistent legislative intention underpinning section 14 is to ensure that the Government and the members of the armed forces are shielded from liability in tort in order to ensure the efficiency, discipline, effectiveness and decisiveness of the armed forces in both training and operations, without being burdened by the prospect of legal action when training, to the point of having to second guess the consequences of every action,” he said.
“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,” stressed Dr Ng, adding that the provision “precludes legal suits brought against the Government – the SAF in this case – or its individual servicemen by servicemen and their Next of Kin themselves”.
He added that “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”.
Dr Ng reiterated the need to retain the immunity provided for SAF commanders and the Government in s.14 GPA.
“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.
“The UK removed this protection for their military in 1987. But in a 2013 report published by the UK House of Commons’ Defence Committee, it was found that repealing that protection had resulted in reputational risk to armed forces personnel and the fear that they and their legitimate actions may be exposed to extensive and retrospective legal scrutiny. This had led many to question their position serving in the UK armed forces.
“Retired senior British commanders also reported that it had undermined armed forces personnel’s willingness to accept responsibility and take necessary risks, with the consequent impact on operational effectiveness,” argued Dr Ng.
Touching on the coroner’s inquiry into Pte Lee’s death, Dr Ng said: “The Member [Mr Tan] talks about judicial process. The Coroner’s Inquiry for fatalities is an open process.
“The facts are established, and he failed to mention that, in this particular case he referred to, the coroner made a finding on the cause of death, and while the infractions in the TSRs were associated, they were not the direct cause of death.
“He did mention that we changed the smoke grenade, but he did not say the reason why. Because it was an acute hypersensitive reaction, which is very uncommon. So, I think the facts are established by an independent body,” said Dr Ng.
“I will give a simple example: training for the Individual Physical Proficiency Test (IPPT). The TSR says you do it; you keep within the TSR. But if you push someone to run faster than he can and he collapses, and it is found that he had an undetected condition after the fact and the person.
“If the commander or even the fellow servicemen feel that he can be sued, not protected, how many commanders do you think will encourage their unit to train harder?
“This is a reality we face; there are inherent risks.
“I think we struck a good balance between maintaining very high safety standards. I think that section 14 provides us that confidence for our commanders to train realistically,” said Dr Ng.
Dr Ng assured that “safety is one of the Singapore Armed Forces’ (SAF) core values, and we strive to continue to tighten our safety system to even achieve zero fatalities, even zero incidents, and we continually do this to make sure that our current safety outcomes are among the highest for militaries globally”.
However, he added, “as we all know unfortunately, despite our best efforts, mishaps do occur from time to time”.
