On the Death of PTE Dominique Sarron Lee

March 13 2016

by Marcus Teo

Military training – which may involve using live rounds, traversing the harsh closed jungle terrain, and driving large military vehicles – has its inherent risks. Yet, even with these risks, the death of a national serviceman cannot and must not be seen as an inevitable part of our peacetime training.

 

PTE Dominique Sarron Lee passed away tragically in 2012, in an incident during a military training exercise not unlike exercises many Singaporean sons have experienced. The death of a national serviceman is a tragedy; public grief is only matched by public outcry. It is important that the serviceman’s family, and Singaporean society at large, are informed of the necessary facts. At the same time, the loved ones and dependents of the serviceman should receive compensation for their loss, even if is only financial. Unfortunately, the law in the area of criminal liability for negligently causing death, and of civil (tortious) liability for the same, are not common knowledge. This understandably causes confusion and frustration among many of those aggrieved by the tragedy.

 

This article aims to briefly explain the law in these two areas, and the law’s applicability to the facts of PTE Lee’s death. In particular, this article will explain that (1) the Government of Singapore is legally obliged to financially compensate the family of a serviceman who passes away during training, (2) the SAF has a legal duty to ensure that any offence committed by a serviceman is punished. 

           

The incident that took PTE Lee's life involved the use of smoke grenades during training, in amounts that contravened training regulations. PTE Lee “died from acute allergic reaction to zinc chloride due to inhalation of zinc chloride fumes,” a substance emitted by the smoke grenades [1]. PTE Lee’s commanders have been found negligent by military court, insofar as they did not comply with those regulations [2]. However, the coroner “could not ascertain whether the acute allergic reaction was due to concentration and/or the mere exposure of zinc chloride fumes” [3]. The Coroner’s Inquiry stated that the acute allergic reaction was “unlikely to have been predicted”. Thus, it is unclear whether the commanders’ negligence of the use of additional smoke grenades caused the death of PTE Lee [4].

 

Financial Compensation for the Death of a Serviceman

 

Generally, the act of negligently causing the death of another gives the deceased’s personal representative (“the claimant”) a civil claim in the tort of negligence, against the negligent party. The aim of such a claim is to place the claimant in such a position as he would have been if the wrong had not been committed, through an award of monetary damages[5]. The claimant can only be awarded damages for a loss that he can prove he has suffered[6]. In the context of the tort of negligence, this requires the claimant to prove, among other things, that he would not have suffered the loss “but for” the negligent act [7] – in other words, that the deceased would not have died if there had been no negligence.

 

Government Proceedings Acts 14(1) [8] exempts the Government and SAF personnel from being sued for civil (tortious) liability. This means that a claimant will not have the opportunity to prove in court that the SAF personnel acted negligently in causing him loss. Government Proceedings Act s 14(1) can only operate when two conditions are met – namely: (i) the loss suffered by, or the death of, the serviceman occurred while he was on duty, and (ii) the loss or death entitles the serviceman or his personal representative respectively to monetary compensation under Singapore Armed Forces (Pensions) Regulations [9]. If either of these conditions are not met, the Government or the personnel may be sued under the tort of negligence [10].

 

There are two differences between the compensation awarded under the Government Proceedings Act and the Singapore Armed Forces (Pensions) Regulations, and damages under the tort of negligence. The first is of primary importance: compensation is awarded even if the would-be claimant cannot prove that his loss was caused by negligence. The second relates to the amount the claimant will receive [11].

 

As explained above, the purpose of the existence of a claim in civil negligence is to protect a claimant’s rights, and to compensate him for his losses [12]. Hence, its purpose is not to punish, or to pass moral judgment, on the negligent party. This is to be dealt with by the criminal law [13], which we look at next.

 

Punishment of SAF Personnel who commit offences

 

The same act of negligently causing the death of another may make the negligent party criminally liable for the offence of causing death by negligent act under Penal Code's 304A [14]. In this context, a prosecutor must, in order to secure a verdict of guilty, show that the negligence contributed “substantially, and not merely peripherally” to the death [15].

 

The only person who may authorize a prosecution is the Public Prosecutor – the Attorney-General. The Public Prosecutor alone has the discretion to choose whether or not he wishes to prosecute any person [16], and if he chooses not to, he is not obliged to explain why [17]. The Public Prosecutor may validly refrain from prosecuting someone even if he is certain that person has committed a criminal offence, if he feels that refraining would be just in the circumstances [18]. It is worth noting that the Public Prosecutor has not hesitated to prosecute SAF personnel under Penal Code s 304A in recent years [19].

 

Where the negligent party is SAF personnel, he is also subject to military law [20]. Here, the party who has the responsibility of prosecuting is the Chief Military Prosecutor – the Director of MINDEF Legal Services [21]. Even where the Public Prosecutor chooses not to prosecute the negligent SAF personnel, the latter may still be charged under Penal Code s 304A, or under any other relevant military offence [22], by a Military Prosecutor. While there are, to the best of our knowledge, no local judgments on this, the plain wording of the relevant statute states that when a military policeman forwards his investigations on the SAF personnel to the Chief Military Prosecutor, the latter must charge the serviceman in question if he believes that the investigation found sufficient evidence that the serviceman has committed an offence [23]. This charge may be dealt with informally at a summary trial or more formally at a court martial [24]. However, only lesser offences may be dealt with at a summary trial [25]. If the negligent party is charged by a Military Prosecutor under Penal Code s 304A, he must be dealt with at a court martial [26].

 

Conclusion

 

Based on the law and practice, it may thus be safely said that, in cases involving the death of a serviceman during military training, the serviceman’s family will be given financial compensation. In addition, the person or persons responsible for his death will be prosecuted either in the High Court or the SAF Court Martial.

 

We should not conclude that monetary compensation, or even a criminal conviction, will alleviate the grief of the loved ones of a deceased serviceman. Unfortunately, the law cannot provide recourse further than that, for an incident that already took place. The best solution, therefore, is to ensure that such incidents never take place again.

 

Only speculations may be made concerning the circumstances PTE Lee's commanders and instructors faced that day. It may have been that some of them felt compelled to carry out orders which they knew were contrary to training regulations. In 2014, it was held in the case of PP v Tan Cavin that no serviceman is legally obliged to carry out his superior’s orders if they are illegal [27]. The Military Justice Project hopes that this judgement will provide commanders and instructors guidance in training activities, in circumstances where risk might be better managed.

 

As death cannot and should not be accepted as inevitable, preventing the loss of life is an important obligation that the SAF must take on. Many systemic improvements in the SAF have taken place over the past few years. To develop a better support system for its soldiers, SAF should continue to strive to improve its safety structures, training procedures, development of commanders and soldiers’ legal awareness. Singaporeans must, too, rally around the improvements that the SAF makes to empower its servicemen. Only then can we – MJP, SAF and Singaporean society at large – confidently say that we are defending those who defend us.

___

 

[1] MINDEF, Ministerial Statement on National Service Training Deaths (14 Nov 2012), online: <http://www.mindef.gov.sg/imindef/press_room/official_releases/ps/2012/14nov12_ps2.html#.VtuZXTaO7BI>

[2] Ibid.

[3]MINDEF, Key Findings from the Death of PTE Dominique Sarron Lee (7 Mar 2016), online: <https://www.facebook.com/notes/the-singapore-army/key-findings-from-the-death-of-pte-dominique-sarron-lee/10153904465541063>

[4] Ibid.

[5] Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 (UKHL) at 39

[6] Chartered Electronics Industries Pte Ltd v Comtech IT Pte Ltd [1998] SGCA 43 at [17]

[7] Sunny Metal & Engineering v Ng Khim Meng Eric [2007] SGCA 36 at [64]

[8] (Cap 121, 1985 Rev Ed).

[9] (Cap 295, Reg 9, 2001 Rev Ed).

[10] Government Proceedings Act s 5

[11] The combined effect of Singapore Armed Forces (Pensions) Regulations reg 39(1), reg 39(2) and reg 37(1)(b) grants the claimant 12 months’ worth of the salary awarded to his rank if he were a regular serviceman, and a lump sum under the Third Schedule of the Work Injury Compensation Act (Cap 354, 2009 Rev Ed), with the possibility of an additional sum which may be given at the discretion of the government, if the death of the serviceman occurred during training. Here, no loss need be proven. In the tort of negligence, the claimant will be entitled to $15,000 as damages for bereavement, by virtue of Civil Law Act s 21(4); any further damages will only be awarded if the claimant can prove loss – which in this case would be the amount that the claimant can prove the deceased would have earned in his current/future job per month, multiplied by the number of months the claimant can prove the deceased would be able to work for; Chang Ah Lek v Lim Ah Koon [1998] SGCA 61

[12] Ashley v Chief Constable of Sussex Police [2008] 1 AC 962 at [18].

[13] Ibid at [17].

[14] (Cap 224, 2008 Rev Ed)

[15] Ng Keng Yong v Public Prosecutor [2004] SGHC 171 at [66]

[16] Constitution of the Republic of Singapore (1999 Rev Ed) art 35(8).

[17] Ramalingam Ravinthran v AG [2012] SGCA 2 at [27].

[18] Ibid at [63].

[19] See Ng Keng Yong v Public Prosecutor [2004] SGHC 171 and S Balakrishnan v Public Prosecutor [2005] SGHC 146 for examples

[20] Singapore Armed Forces Act (Cap 295, 2000 Rev Ed) s 3.

[21] Ibid at s 82(6).

[22] For example, the offence of negligently endangering life or property under Singapore Armed Forces Act s 41(b).

[23] Singapore Armed Forces Act s 179(2)(b).

[24] Ibid.

[25] Ibid s 61(1) & the Schedule (Specified Offences).

[26] The same can be said if he is charged with the offence of negligently endangering life or property under Singapore Armed Forces Act s 41(b).

[27] PP v Tan Cavin (2014) (DAC 34968-9/2013; unreported).

Please reload

  • Facebook Basic Black

© 2017 Military Justice Project