Deputy Registrar Kim Bum Soo:
Assume the following: As of 4 March 2021, the Court of Appeal stated the law as (what I shall, for convenience, simply refer to as) “X”: Tan Woo Thian v PricewaterhouseCoopers Advisory Services Pte Ltd [2021] 1 SLR 1166 at [8] (“Tan Woo Thian”)). X seemingly contradicts the standing practice of the Bar and indeed, much of the understanding that prevailed in the State Courts up till then (“the old approach”). Confusion ensues. What does X entail? Does X require an upending of all the aforementioned practices? A period of uncertainty follows. In March 2023, the High Court clarifies what X is, confirming that the old approach was indeed legally unsound and conceptually wrong: Salmizan bin Abdullah v Crapper, Ian Anthony [2023] SGHC 75 (“Salmizan”) at [119] and [146(c)]. The High Court later clarifies, in a separate judgment, that Salmizan’s earlier pronouncement (about the scope of X, and the implications arising therefrom) is only to have prospective effect: Foo Kok Boon v Ngow Kheong Shan and other and another matter [2023] SGHC 189 (“Foo Kok Boon”) at [26] – [35].
The question then, is how the State Courts should deal with legacy cases that adopted (what is now accepted as) an entirely erroneous approach. On one hand, Foo Kok Boon limits Salmizan’s retroactive effect, suggesting that the old approach, wrong as it may be, should continue to apply to the legacy cases: Foo Kok Boon at [37]. As against this, the Court of Appeal has clearly stated the law to be X. Even if Salmizan’s retroactive effect is erased, X continues to be the law and the old approach should still be scrutinised to determine whether it falls foul of X. If Salmizan’s reasoning is correct – and this is regardless of whether Salmizan holds retroactive effect – the conclusion is that the old approach is wrong and may have to be rejected.
My view is that Salmizan’s reasoning is correct, and that the old approach is wrong. I am therefore, in principle, opposed to the application of the old approach in any and all cases. However, given that there is a standing High Court authority (Foo Kok Boon) explicitly directing that the legacy cases ought to be treated as they were under the old approach, I find myself bound to follow the same. The present case, premised as it may be, on what I see as an erroneous approach, must be taken and assessed under the old approach (see below at [8] – [14]).
Facts
The Plaintiff, a 68 year-old self-employed swimming teacher at the time of the accident, was involved in a road traffic accident on 22 January 2017. He sustained multiple injuries and was consequently on medical leave for almost the entirety of 2017 (see [64] below). His motorcycle was damaged beyond economical repair, and he continues to experience residual pain from some of his injuries. Interlocutory judgment was entered in his favor on 24 June 2020, for 85% of the damages to be assessed, with interest and costs reserved to the Registrar hearing the assessment of damages.
Before the accident, a significant portion of his clientele was the “children of Japanese expatriates”. He had a “growing base” of such students and relied on referrals from parents in the Japanese expatriate community. Following the accident, and after a forced hiatus from teaching for a year, he finds himself with residual pain from his injuries, and fearful of riding again. He continues to teach at “public swimming complexes and private condominium pools” but now takes public transport to travel to classes. He finds that his travelling time between classes has become much longer and is consequently unable to take on as many classes as before.
His claim, therefore, is for the pain and suffering arising from his injuries, the loss of earnings attributable to the injury (both pre- and post- trial), as well as the property damage to his motorcycle.
Executive Summary
This is my award in summary:
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| S/N | Item | Award |
| GENERAL DAMAGES |
| Pain and Suffering | |
| 1 | Periorbital haematoma | $1,500 |
| 2 | Contusion to left write with dorsum abrasion | $750 |
| 3 | Fracture of 3rd – 9th ribs and surgical scars | $15,800 |
| 4 | Fracture of left metatarsal samoid bone. | $2,500 |
| 5 | Abrasions to left and right knees | $1,500 |
| 6 | Contusion to left knee and aggravation of pre-existing osteoarthritis. | $7,200 |
| Future Medical Expenses |
| 7 | Medical follow-ups | $500 |
| Future Transport Expenses |
| 8 | For medical follow-ups | $100 |
| Others |
| 9 | Loss of future earning capacity | $4,000 |
| SUB-TOTAL (GENERAL DAMAGES): | $33,850 |
| SPECIAL DAMAGES |
| Loss of Pre-trial Income |
| 10 | Loss of pre-trial earnings (2018 – 2023) | $103,830 |
| Pre-trial Medical Expenses |
| 11 | Medical follow-up | $1,383.50 |
| Pre-trial Transport Expenses |
| 12 | Trips for medical appointments | $240 |
| Property Damage |
| 13 | Motorcycle | $8,471 |
| SUB-TOTAL (SPECIAL DAMAGES): | $113,924.5 |
| TOTAL DAMAGES (GENERAL & SPECIAL DAMGES): | 147,774.5 |
General Damages - Pain and suffering
Preliminary issue – whether the Defendants may deny causing the injuries experienced by the Plaintiff at an assessment of damages
The problem is that the Defendants denied causing some of the injuries. They denied causing the eye injury and the left knee injury. This is controversial because causation of damage ought to have already been established, and beyond challenge, by the time proceedings had advanced to the assessment of damages (“AD”) stage: see Salmizan at [58], [61], [84] and [119]. As against this, the old approach (see [1(b)] above) accepted that it was perfectly permissible to challenge causation of injuries in toto at the AD stage (see Kek Lai Quan (Guo Laiquan) v Lim Junyou [2022] SGMC 7 at [8], and Eliora Yow (an infant suing by her father and litigation representative, Yow Tuck Meng Jerry) v Kwa Kian Peng [2020] SGMC 44 at [10]).
The question, therefore, is whether the Defendants here are entitled to deny causing these injuries at the AD stage. My answer is yes, and the analysis proceeds in three parts.
First, the starting point is that the old approach is wrong. The causal link between the negligent act and the alleged damage cannot be challenged at all at the AD stage. This much was made in clear in Salmizan. The reasoning there is extensive and formidable, but these two reasons suffice for present purposes: Challenging causation at the AD stage would be inconsistent with the nature of an interlocutory judgment. An interlocutory judgment is “final as to the right of the plaintiff to recover damages”. That right is premised on “liability for those damages [having] already been established”. Challenging causation at the AD stage would effectively mean denying causation, an essential element in establishing liability for the tort of negligence. This is inconsistent with the fact that such liability (including all the elements necessary for its establishment) has already been conclusively crystalised in the interlocutory judgment: Salmizan at [58] – [62], and [82]. It is similarly inconsistent, even if the Defendants seek to challenge causation for only some of the injuries. After all, an interlocutory judgment necessarily establishes liability, and renders moot any question of causation, for all injuries suffered by the Plaintiff: Salmizan at [87] and [146(d)]. Challenging causation at the AD stage would be inconsistent with the broad policy of encouraging parties to settle their PIMA cases as early as possible. Once defendants have consented to an interlocutory judgment, they should not be allowed to “kick the can down the road by reserving some issues of causation to be contested at the AD stage”, potentially resurrecting disputes about the content of the judgment for liability: Salmizan at [114].
Second, the old approach is still wrong, even though Salmizan’s retrospective effect has been erased by Foo Kok Boon. Applying the doctrine of prospective overruling to Salmizan does not simply whitewash the old approach. It ought to still be scrutinised for coherence, especially against the standing Court of Appeal authorities that have set out the law (see Salcon Ltd v United Cement Pte Ltd [2004] 4 SLR(R) 353 at [8] and [24], and Tan Woo Thian at [8]). In my view, the old approach is still wrong, and still falls foul of the principles stated in Court of Appeal authorities such as Salcon and Tan Woo Thian. In gist, Salcon and Tan Woo Thian state that causation, being a crucial element of negligence, would have to be established before any damages can be quantified. Any suggestion that causation can still be challenged afterwards at the AD stage, therefore goes against the overall tenor of these authorities (see also Salmizan’s discussion of these authorities at [89] and [119]).
Third, notwithstanding my serious reservations about the correctness of the old approach, I will adopt and apply that approach in my judgment. In other words, I will squarely address issues of causation even when they have been raised (inappropriately) at the AD stage. This is because Foo Kok Boon has made the precise legal effect of its holding very clear, and I consider myself bound by the same:
The precise effect of this holding is that a defendant who entered into an interlocutory judgment (whether by consent or not) prior to the date of the decision in Salmizan (ie, 30 March 2023) is entitled to raise issues of causation at the AD stage, even in respect of all the damage that the claimant claims to have suffered.
The only difficulty is that there are standing authorities from the Court of Appeal that suggest the old approach is wrong (see [11] above). A possible implication: that I should reject the old approach, despite Foo Kok Boon’s unequivocal holding to the...
