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SAF ‘granted legal immunity, but does not have carte blanche to disregard safety’

SINGAPORE — The law is clear that soldiers are granted immunity from being sued for any mishaps they cause other soldiers in the course of their duties, but this does not give them carte blanche to act without sufficient regard for safety.

Dominique Sarron Lee. Photo: MINDEF

Dominique Sarron Lee. Photo: MINDEF

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SINGAPORE — The law is clear that soldiers are granted immunity from being sued for any mishaps they cause other soldiers in the course of their duties, but this does not give them carte blanche to act without sufficient regard for safety.

A High Court judge made this point yesterday in explaining why he dismissed an attempt by the late Private Dominique Sarron Lee’s family to sue on the botched military training exercise that led to his death.

The 21-year-old full-time national serviceman collapsed with breathing difficulties during an April 2012 exercise where excessive smoke grenades were used, and later died from an acute allergic reaction from inhaling zinc chloride fumes. His family sued his then-platoon-commander Captain Najib Hanuk Muhamad Jalal and chief safety officer of the exercise Captain Chia Thye Siong — after both were summarily tried and found guilty in military court for negligent performance of lawful order or duty. They also sued the Attorney-General for breach of contract between Lee and the Singapore Armed Forces (SAF).

Judicial Commissioner Kannan Ramesh had ruled in March that the two officers qualified for immunity from being sued under Section 14 of the Government Proceedings Act (GPA). The statute states that as long as any deaths or injuries occurred during service, any SAF officer involved or the Government are not liable to be sued.

The judge issued his full grounds, which were made public yesterday, because Lee’s family launched an appeal against his decision.

JC Kannan said that while the circumstances of the case are “undoubtedly tragic” and he has “great sympathy” for Lee’s family, it also invoked a matter of importance.

“Whilst the tragedy behind this case, and the pain and anguish it has engendered, should be recognised, we should not forget that this case also engages a matter of great importance — the ability of the SAF and its members to safeguard our nation and her security without being burdened by the yoke of tortious civil liability,” the judge said. “The immunity accorded by (Section 14 of the GPA) does not mean that the SAF and its officers have carte blanche to act without sufficient regard to the safety of the young men and women whose lives are entrusted to them. Indeed, to the contrary, the fact that such immunity exists in and of itself imposes an even heavier moral burden on the SAF and its officers to exercise utmost care in looking after their young charges.”

Mr Irving Choh, the lawyer acting for Lee’s family, had argued that Mr Najib and Mr Chia did not qualify for immunity under the GPA since they had breached the safety regulations on the number of smoke grenades used in the training exercise in question.

JC Kannan overruled this, noting that whether a mishap was the result of negligence did not matter under the GPA. As long as the victim was on duty, immunity from a lawsuit applies since the objectives of the law are to safeguard the efficiency of training, and unburden members of the SAF of the prospect of legal action during training “to the point of having to constantly look over their shoulders”.

Lee’s family also cannot sue the Attorney-General on the grounds that the youth’s contract with the SAF had been breached because of the negligence during the training, said the judge.

This is because National Service is “a matter of legislative compulsion” and not a contractual agreement, he added. Unlike in a contractual relationship, an enlistee is not free to choose whether he serves, he explained.

JC Kannan added that if he were to accept that Lee’s family has a case for breach of contract, it would mean the courts are allowing, “through the backdoor, what the legislature has prohibited by the front”.

He stressed, though, that while it is critical to not let the “spectre of tortious civil liability” impede military training, national servicemen must be “assiduously protected and safeguarded”.

JC Kannan added: “I am entirely convinced that the SAF and all who command it fully recognise the weight of that burden, and do their very best to sedulously discharge it. However, despite the best intentions and careful and meticulous planning, mistakes can and unfortunately sometimes do happen.”

The SAF has disbursed welfare grants and offered the family compensation after the incident. Mr Najib and Mr Chia were each awarded legal costs of S$6,000, while the Attorney-General was awarded S$10,000.

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