FOO KOK BOON v NGOW KHEONG SHEN & 2 Ors

Facts

Foo Kok Boon is the third defendant in HC/S 834/2021, a personal injury claim by Ngow Kheong Shen arising from a seven-car chain collision on 6 July 2015 near the Moulmein Exit of the Central Expressway. A consent interlocutory judgment on liability was entered against Mr Foo on 2 May 2019, when the plaintiff's pleaded claim included whiplash, shoulder injuries, dysthymia and a heart attack. Doctors later appointed by his insurers concluded, among other things, that the accident did not cause the heart attack.

In Salmizan bin Abdullah v Crapper, Ian Anthony [2023] SGHC 75, decided on 30 March 2023, Goh Yihan JC held that a defendant who has entered interlocutory judgment on liability cannot challenge causation at the assessment of damages stage in a motor accident personal injury claim. Before that decision, parties commonly reserved all causation issues to the assessment. Mr Foo applied in HC/OA 607/2023 to set aside the consent judgment, after first proceeding by HC/SUM 1288/2023 within the suit. His counsel explained that the real aim was a ruling that Salmizan applies only prospectively, a position the plaintiff also supported while opposing the setting aside.

Issues

1. Whether an application to set aside a consent interlocutory judgment must be brought as fresh proceedings.
2. Whether the High Court had jurisdiction to rule on the prospective effect of Salmizan although it was not sitting as an appellate court.
3. Whether the doctrine of prospective overruling should apply to Salmizan.

Holding

Goh Yihan JC dismissed the application in OA 607, so the consent judgment stands, and made no order on SUM 1288. He held that prospective overruling applies to Salmizan: a defendant who entered interlocutory judgment before 30 March 2023 may still raise causation at the assessment stage, even for all the damage claimed.

Reasoning

Following Muhammad Tirmidzi Bin Misnawi v Agnes Chai Yui Yun [2023] SGDC 100, the judge agreed that setting aside a consent judgment requires a fresh originating application.

On jurisdiction, Adri Anton Kalangie v Public Prosecutor [2018] 2 SLR 557 indicates that only appellate courts may invoke prospective overruling. But the judge had expressly reserved the question in Salmizan, which was an uncontested preliminary-question application arising from a Magistrate's Court case that remained live, so he had sat in a capacity akin to an appellate one. Public Prosecutor v Hue An Li [2014] 4 SLR 661 also allowed the doctrine for first-time pronouncements, and no other court would otherwise be able to rule while a permission application to the Appellate Division was pending.

Applying the Hue An Li factors, the judge found this was one of the exceptional civil cases. The old practice of reserving all causation issues was well entrenched, even reflected in a State Courts form before 1 March 2021; the change, beginning with Tan Woo Thian v PricewaterhouseCoopers Advisory Services Pte Ltd [2021] 1 SLR 1166, was extensive and unforeseeable; and many parties had relied on it under the pre-action protocol. Retroactive effect would unravel many interlocutory judgments and add time and complexity, and if Salmizan were overruled on appeal parties could be sent back to square one.

From the judgment