Civil Claims for Negligence Arising from Safety Breaches during SAF Training

Mr Deputy Speaker, Sir, I would like to take this opportunity to address the House today about the Government Proceedings Act (GPA).

Specifically, I would like to propose 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. An example would be if an officer or instructor fails to comply with Training Safety Regulations (TSR) or any training safety protocols recommended in any Singapore Armed Forces (SAF) lesson plans or manuals. There should be a clear distinction between training and operations for purposes of liability under section 14 of GPA. Such an amendment to GPA can better protect our troops and better enhance public confidence in SAF in the area of training safety.

In March 2016, I filed a Parliamentary Question to the Minister for Defence on issues relating to the death of Private (Pte) Dominique Sarron Lee during SAF training. I asked a supplementary question as to whether the Government would consider amending section 14 of 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.

In response, the Minister for Defence said that if I felt strongly about the changes to GPA, I could put up a Motion. I do feel strongly about not just the case of Pte Lee. Any loss of life is regrettable. But there are larger issues at stake as well. They have to do with ensuring that our women and men in uniform have the protection they deserve during training. This remains the case even as SAF seeks to prepare them realistically for tough operational situations. They also have to do with bolstering public confidence in the Armed Forces. After all, we have an armed forces which is composed mostly of conscripts. Anything to do with SAF has the potential to affect every single Singaporean family.

As legislators, those of us in this House have an obligation to citizens that we work to their best interests. It is for these reasons that I am moving this Motion.

Tough and realistic training is important for SAF. There is no doubt about that. However, training occurs in a controlled environment by design, unlike operations that, by their nature, have higher levels of risk, uncertainty and unpredictability. Action and behaviour permissible during training should be subject to more stringent limits than operations. 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.

All military training and operations carry some risks to be sure, but training affords the controlled circumstances that allow the careful management of such risks. The aim is to ensure that learning takes place without harm to our service personnel. These are the same personnel whom we will have to rely on during operations.

To expect service personnel to risk themselves for our country, to go into harm's way for us when asked, it is only right for the nation to afford them adequate protection where possible, not least during training, when what is at stake is a learning outcome and not an immediate life or death situation. Given Singapore's limited human resources, it is also in the interest of SAF and the nation to keep injury and death in training to a minimum.

Actually, SAF has always recognised this distinction between training and operations. That is precisely why SAF has the TSR and other safety directions in lesson plans. When I was an officer cadet, we were all drilled in the TSR. We had to be tested on it. We consulted the TSR and had safety briefings before activities and exercises. When we go into the units, the same emphasis on TSR remains. This was also the case during my National Servicemen (NSmen) training. As NSmen commanders, the safety of our men during training and observance of TSR are always top priorities. After all, every NSmen is a son, sibling, spouse or father to another Singaporean. We inprocess together to do our In Camp Training once a year and we want to outprocess together with everyone safe, sound and happy to go back to our families. NSmen who have been through the usual NS cycles will understand that and it is down to NSmen commanders to ensure, as far as training safety is concerned, that that will happen.

The TSRs describe safety procedures in detail, often giving very exact distances, ranges, equipment and contingency safety measures for different types of training exercises. They lay out what should be done and spell out what needs to be avoided. There is good reason for this meticulousness. A mistake from carelessness, laziness, or irresponsibility may lead to serious injury, even loss of life. So, it is important to remind commanders what to do and what to avoid when conducting training.

Lesson plans and TSRs are, in a number of cases, written in blood. Safety procedures for prisoner of war training saw a revision after the unfortunate death of one service personnel and serious injury to another. The tragic death of Pte Dominique Sarron Lee brought a revision to safety procedures relating to the use of smoke grenades in training, including a change to the type of smoke grenade SAF uses. There are other examples which I do not have the time to go into now.

Operations. 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. They have very different objectives and goals. What is at stake in operations is very different from a training exercise. They may involve conditions outside the control of commanders and SAF.

In this regard, considerations of risk during operations are very different from training. There is a different case to be made for exempting commanders from legal liability during operational situations. Training safety protocols obviously do not readily apply. A clear line exists between operations and training.

I was a little bit surprised when the Minister for Defence equated examples of operations with breaches of safety protocol during training in his reply to my supplementary question in Parliament last March. The Minister cited examples of: (a) a Police Officer discharging a firearm when in pursuit of a suspect that the officer "thinks is going to commit harm"; (b) service personnel who "see a significant threat" at a key installation they are protecting; and, (c) the Police shooting incident after a vehicle tried to breach the barricades at last year's Shangri-La Dialogue and was shot by a Gurkha Police Officer.

The Minister's examples all pertain to Police operations, not even training. Training personnel to make operational decisions does not involve completely replicating a real-world situation. It is peculiar at best to think that training personnel to make snap judgements about responding to significant threats or vehicles breaching barricades requires the use of live weapons on real people, for instance. A line can and should be drawn between training and operational considerations. This is a line that is clear in principle and in fact.

In the Minister's response to my Parliamentary Question in March, he said, "injuries and deaths can happen despite best efforts." He went on to discuss two accidents that involved negligence, a rash act, and an attempt to "pervert the course of justice". These incidents involved "acts that amount to criminal offences under general law", as the Minister noted. I agree with the Minister that accidents can and do sadly occur.

Accidents, however, can take place for a variety of reasons, under a range of conditions. They may occur on the road, in the regular operation of equipment, or because of unforeseen circumstances. In training situations, safety protocols laid out in lesson plans and the TSR seek to minimise accidents and other incidents.

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. Training conditions have clear safety codes laid out, and commanders have a duty to comply.

Mr Deputy Speaker, Sir, 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. 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.

If commanders choose to engage in such behaviour, if they choose to endanger our children, siblings, spouses or parents in situations that do not warrant such risk, they should answer for it, and not just to the state, but to the Servicemen or to his or her family. Section 14 of GPA should be amended to reflect this.

If someone endangers or, worse, harms our women and men in uniform because of a lack of care with regard to established safety protocols, they need to answer to those they have a responsibility for. This should be the case, even if an act is not criminal. Answering to SAF through the military justice system does not achieve this. In effect, at least from a civil law perspective, errant officers or instructors are not directly accountable to the people they are in charge of. At best, officers are only accountable to the Ministry of Defence (MINDEF) or to the state.

The Minister for Defence is right to say that civil suit is not trivial. That is precisely why there are circumstances where civil claims should be allowed, and I submit that violation of safety procedures during the controlled environment of training should be one of them. 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 TSRs or safety considerations in lesson plans.

Knowledge of the possibility of a civil suit reduces the moral hazard by making the gravity of consequences more evident. 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.

The Minister has, in response to my supplementary question about lifting the right to sue for training cases, said that: "The Member says, why not lift it from training? You cannot train at one pace and expect your security forces to ramp up their capabilities when in real operations. There is a saying, you know, 'When you do not sweat in training, you will spill blood in real operations'. You have to make your training realistic so that when we meet those circumstances – like the guard who fired at the car and stopped the car in time. Do you think you can get that level of proficiency if they think they are not protected during training?"

With respect, I was not asking for unbridled or unrealistic restrictions to training. That is quite clear from the scenarios I cited in my question. Nevertheless, I have said today that civil liability should be allowed for limited circumstances, for instance, when officers have clearly failed to comply with TSRs. Surely, the Minister was not implying that training in compliance with TSRs is not realistic or that any breaches of TSRs to make training realistic is acceptable to SAF.

The Minister mentioned that punitive actions have, in the past, been taken against errant officers by way of criminal proceedings or proceedings under military law. By military law, it can, of course, be Court Martial proceedings or summary trials. But 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 SAF. The Serviceman or his family has no say whether criminal proceedings, Court Martial proceedings or summary trials are to be commenced. It is completely at the discretion of MINDEF or the Attorney-General's Chambers. This is unlike the 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.

MINDEF mentioned in their press release of 7 March 2016 of an offer of compensation to Pte Lee's family which was rejected. It appears that the offer was "based on the full extent allowed by the compensation legislation". MINDEF also said that "To respect privacy and maintain confidentiality, compensation amounts are not disclosed, but are generally two to four times that of amounts provided under the Work Injury Compensation Act" (WICA). It is not very clear what was offered to the family but, for avoidance of doubt, the awards under WICA are usually less than awards under common law negligence claims.

I have two further reservations about this system of compensation. This seems to be strictly on a confidential and "without prejudice" basis. While as a lawyer I have familiarity with this kind of thinking in litigation, for the lay person without having the right of civil suit, the entire culture of this internal system of compensation to have offers couched in confidential, "without prejudice" language and with MINDEF's denial of liability as a basis for such compensation, just does not augur well for the confidence of the injured Serviceman or the family of a deceased Serviceman in such a system.

Mr Deputy Speaker, safety is one of the Singapore Armed Forces' (SAF's) 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. But as we all know, unfortunately, despite our best efforts, mishaps do occur from time to time.

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 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.

The Member talks about judicial process. The Coroner's Inquiry for fatalities is an open process. The facts are established and the Member failed to mention that, in this particular case that 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. If there is criminal negligence and rash acts, they are charged in criminal Courts and punished accordingly. SAF Servicemen have, indeed, been jailed and fined as a consequence. Members can refer to our records, which I will not repeat here.

Apart from criminal proceedings, SAF and its members can be litigated against for compensation in the civil Courts for damage done to civil property or injury suffered by civilians.

The Member is quite right in raising section 14, that section 14 exempts the Government and servicemen from being sued. I thought it would be useful, in response to the Member's various points, to quote the Grounds of Decision (GDs) by Judicial Commissioner (JC) Kannan Ramesh in this specific case which he cited, the Estate of Lee Rui Feng Dominique Sarron, deceased v Najib Hanuk bin Muhammad Jalal. And in the GD, the judge provided a comprehensive examination of the history and the reasons for section 14 and I will share some passages.

The judge recognised that section 14 of the GPA was enacted to place 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. "Intrinsic to military training". He recognised that. JC Kannan 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.

The Member paints it as if this Act protects the Government and Servicemen who are not part of our Singapore community. But he is absolutely correct that we are a conscript army and this very Act protects commanders and Servicemen who are also partly drawn from our Singaporean community.

JC Kannan also explained that while section 14 removed the Plaintiff's right of action in tort, the Plaintiff is nevertheless entitled to compensation under the SAF Pensions regulations and our compensation, as I have previously said in this House, is about two to four times of the Workmen's Compensation.

Each country will have to decide how it provides its public security agencies as a whole and their personnel − in our case, the SAF, Singapore Police Force and Singapore Civil Defence Force − 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, as JC Kannan 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.

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.