According to media reports, the High Court ruled against Dominique’s family, citing Section 14 of the Government Proceedings Act that “Nothing done or omitted to be done by a member of the forces while on duty as such shall subject either him or the Government to liability in tort for causing the death of another person, or for causing personal injury to another person, in so far as the death or personal injury is due to anything suffered by that other person while he is a member of the forces…”
Why doesn’t the SAF allow people to sue them in civil court? It does sound logical after all doesn’t it?
Reason number one: the floodgates
The reason why the SAF won’t remove the clause is probably because of this “floodgates” argument. This is a legal principle sometimes applied by the Courts to restrict or limit the right to make claims for damages. They do this because there are concerns that by allowing one claim, it opens up to a flood of claims and thereby causing imbalance to the system.
The legal maxim holds it incorrect for justice to be realised regardless of consequences.
“If claims for economic loss were permitted for this particular hazard, there would be no end of claims”, reasoned Judge Cardozo of the New York Court of Appeals in 1932.
Reason number two: insurance
For now at least, the SAF has a system of compensation. I do not know for certain how this compensation framework looks like. I do not know how it is awarded, its limitations and how the system determines an amount.
My simple guess is that the “framework” (if there exists one), is determined by an insurance policy that the SAF buys to protect themselves.
A high amount of tort compensation is paid through insurance. This is the reason why vehicle owners and hirers of foreign domestic workers are required to purchase insurance: so that in the event of a loss or liability, a payment is assured. There is no need to fret whether or not the defendant can afford to pay. There is also no need to burden the tax payer.
So there is compensation by the SAF. That is probably another reason why they do not see a need to amend Section 14 of the Government Proceedings Act.
Should Parliament remove the immunity of the Government/SAF?
We must consider first that the SAF is a very “kiasu” organisation. A rumble of thunder in the air and they withdraw outdoor exercises. Complain of a fever and they take you out of training. Declare that you didn’t have enough sleep and they won’t let you drive a vehicle.
I suspect they have a similar attitude towards compensating for negligence – “better pay them properly before they take to the media”.
You can argue that it would be “fair” and “just” for the Courts to determine and award damages.
However, the problem with allowing the Courts to decide, is that you are at the mercy of the common law and all its uncertainty. After all, the general philosophy underpinning tort law is that losses should lie where they fall. You may not get the result you want. Many a disappointed plaintiff can tell you that.
Dominique’s case for example can be dismissed with arguments that a duty of care had been fulfilled, or (depending on facts) that he had come to the danger voluntarily.
Should the logic of civil claims be based on how others do it in other countries?
The SAF cites the practice of foreign armies and how it is a norm not to allow for civil claims in the military. But that is an unwise argument. Ours is a civilian army, we are not conscripted by choice.
To allow for civil claims, it wouldn’t be as easy as striking out Section 14 of the GPA. Law makers would have to create different levels of claims: for wartime, for peacetime and maybe even having to cater to different grades of injuries and/or death.
Perhaps the law doesn’t need to be amended.
What is needed though, is more transparency in how the SAF deals with accidents and death. More importantly, we need to know how the organisation limits liabilities in cases of negligence.
It is a military that we serve in. It is inherently dangerous, all its activities are high in risk and we have sworn that we will not spare our blood in the defence of the nation.
But we are also civilians with loved ones to care for and we have a duty to stay alive in peacetime for their sakes. If we are going to be exposed to high risk activities, it would be comforting to know how they will be taken care if we are not around or have been maimed.
Indeed the SAF should be accountable and more transparent. I just don’t think that a combative legal approach is the best way to do it.