FOO KOK BOON v NGOW KHEONG SHEN & 2 Ors

"I also hold unequivocally that the doctrine of prospective overruling should apply in relation to Salmizan." — Per Goh Yihan JC, Para 4

Case Information

• Citation: [2023] SGHC 189 (Para heading)
• Court: General Division of the High Court of the Republic of Singapore (Para heading)
• Date of Judgment: 12 July 2023 (Para heading)
• Coram: Goh Yihan JC (Para heading)
• Case Numbers: Originating Application No 607 of 2023; Suit No 834 of 2021 (Summons No 1288 of 2023) (Para heading)
• Counsel for the Applicant: Wee Anthony, Koh Keh Jang Fendrick, Alexius Chew Hui Jun and Kenneth Loh Ding Chao (Titanium Law Chambers LLC) (Para 39)
• Counsel for the First Respondent: John Vincent (John Law Chambers LLC) (Para 39)
• Second Respondent: Absent and unrepresented (Para 39)
• Counsel for the Third Respondent: Fernandez Christopher and Low Huai Pin (Tan Kok Quan Partnership) (Para 39)
• Area of Law: Civil procedure, specifically judgments and orders and prospective overruling (Para 39)
• Judgment Length: Not stated in the extraction (Not answerable)

What Was the Procedural Setting of the Application Before Goh Yihan JC?

This was an application by Mr Foo Kok Boon to set aside a consent interlocutory judgment entered against him on 2 May 2019 in a motor accident suit. The application was brought in HC/OA 607/2023, and the judgment explains that the application arose because of the court’s earlier decision in Salmizan bin Abdullah v Crapper, Ian Anthony. The applicant sought to use that later decision to reopen the earlier consent interlocutory judgment. (Para 1) (Para 2)

"This is Mr Foo Kok Boon’s application in HC/OA 607/2023 (“OA 607”) to set aside the consent interlocutory judgment entered against him on 2 May 2019 (“the CIJ”)." — Per Goh Yihan JC, Para 1

The court identified at the outset that the present application was not simply about the mechanics of setting aside a judgment. It was also about the legal consequences of Salmizan, because the applicant’s position depended on whether that earlier decision should affect interlocutory judgments already entered before Salmizan was decided. The judgment therefore had both a procedural dimension and a broader jurisprudential dimension concerning prospective overruling. (Para 2) (Para 4)

"The present application has arisen because of my decision in Salmizan bin Abdullah v Crapper, Ian Anthony [2023] SGHC 75 (“Salmizan”)." — Per Goh Yihan JC, Para 2

The court ultimately dismissed the application to set aside the CIJ, but it also addressed the temporal reach of Salmizan. The judge stated unequivocally that prospective overruling should apply in relation to Salmizan, with the result that defendants who entered interlocutory judgments before 30 March 2023 could still raise causation at the assessment of damages stage. That conclusion framed the practical significance of the case. (Para 4) (Para 37)

How Did the Court Describe the Underlying Accident and the Claim?

The suit arose from a chain collision on 6 July 2015 involving seven cars near the Moulmein Exit of the Central Expressway. The judgment records that the plaintiff’s pleaded claim, at the time the CIJ was entered, included general damages for whiplash, shoulder injuries, increased risk of developing osteoarthritis, persistent depressive disorder (dysthymia), and heart attack. Those pleaded injuries mattered because the applicant later challenged causation in relation to them. (Para 9)

"the Suit arose out of a chain collision on 6 July 2015, which involved seven cars near the Moulmein Exit of the Central Expressway (“the Accident”)." — Per Goh Yihan JC, Para 9

"At the time the CIJ was entered on 2 May 2019, the plaintiff’s pleaded claim was for, among others, general damages for the following physical injuries: (a) whiplash; (b) shoulder injuries; (c) increased risk of developing osteoarthritis; (d) persistent depressive disorder (dysthymia); and (e) heart attack." — Per Goh Yihan JC, Para 9

After the CIJ had been entered, the applicant’s insurers arranged for three doctors to examine the plaintiff. Their reports were central to the applicant’s attempt to reopen the matter, because the reports concluded that the Accident did not cause the plaintiff’s heart attack, that the shoulder injuries were chronic and difficult to attribute to trauma, and that the dysthymia symptoms were perpetuated by bereavement and work stress. The court’s summary of those reports shows why the applicant believed causation remained open for challenge. (Para 10)

"Subsequent to the CIJ being entered, the applicant’s insurers appointed three doctors to examine the plaintiff." — Per Goh Yihan JC, Para 10

"In their respective reports, the doctors concluded, among others, that: (a) the Accident did not cause the plaintiff’s heart attack; (b) the plaintiff’s alleged shoulder injuries were chronic, and it was difficult to ascertain if the tears were due to degeneration or trauma; and (c) although the plaintiff suffered from dysthymia after the Accident, the symptoms of such were perpetuated by a back-to-back bereavement as well as work stress." — Per Goh Yihan JC, Para 10

What Was the Applicant Trying to Achieve by Relying on Salmizan?

The applicant’s substantive position was that he should not be liable to compensate the plaintiff for all pre-existing injuries or any other alleged damage not caused by his breach of duty. In other words, he sought to use the later causation analysis in Salmizan to argue that the plaintiff had not established causation for every head of damage. The court records that this was the applicant’s broad contention. (Para 11)

"the applicant broadly contends that he is not liable to compensate the plaintiff for all pre-existing injuries or any other alleged damage which was not caused by the applicant’s breach of duty." — Per Goh Yihan JC, Para 11

At the hearing, counsel for the applicant argued that Salmizan should apply only prospectively because the decision had created practical difficulties in cases where interlocutory judgment had been entered before Salmizan was decided. The applicant’s argument was therefore not merely that Salmizan was correct as a matter of law, but that its effect should be confined to future cases so as not to disturb earlier interlocutory judgments. (Para 11)

"At the hearing before me, Mr Wee argued that Salmizan should only apply prospectively as the decision has created practical difficulties in cases where the interlocutory judgment was entered into before Salmizan was decided." — Per Goh Yihan JC, Para 11

The first respondent, who appeared for the plaintiff, objected to setting aside the CIJ on the basis that the law was different when the CIJ was entered. Yet he aligned himself with the applicant on the separate question of prospective application, agreeing that Salmizan should only apply prospectively. The court thus had before it a somewhat unusual alignment: the applicant and the first respondent were united on prospectivity, even though they were opposed on whether the CIJ should be set aside. (Para 12)

"Mr Vincent, who appeared for the plaintiff, objected to the CIJ being set aside on the basis that the law was different at the time the CIJ was entered into." — Per Goh Yihan JC, Para 12

"Mr Vincent also aligned himself with Mr Wee’s argument that Salmizan should only apply prospectively." — Per Goh Yihan JC, Para 12

Why Did the Court Say the Application to Set Aside the Consent Interlocutory Judgment Was Procedurally Misconceived?

Before turning to the merits of the applicant’s attempt to rely on Salmizan, the court dealt with the correct procedure for setting aside the CIJ. The judge stated that the legal authorities were clear that an application to set aside a consent judgment or order must be commenced as fresh proceedings, rather than by summons in the prior case. That procedural point was important because the applicant had proceeded by way of OA 607 and SUM 1288 in the existing litigation. (Para 6) (Para 7)

"Before I turn to the applicant’s application properly, I first deal with the correct procedure to set aside the CIJ." — Per Goh Yihan JC, Para 6

"a party seeking to set aside a consent interlocutory judgment ought to begin fresh proceedings to do so instead of trying to do that by way of a summons in the prior case" — Per Goh Yihan JC, Para 7

The court relied on the Court of Appeal decision in Siva Kumar s/o Avadiar v Quek Leng Chuang and others for that proposition. The judgment states that the Rules of Court 2014 do not provide a residual discretion to set aside contractual consent orders, and that the proper route is fresh proceedings. This meant that the applicant’s procedural route was not the one contemplated by the authorities. (Para 7)

"the legal authorities, such as the Court of Appeal decision of Siva Kumar s/o Avadiar v Quek Leng Chuang and others [2021] 1 SLR 451 at [34], are clear that an application to set aside a consent judgment or order must be commenced as fresh proceedings" — Per Goh Yihan JC, Para 7

"the Rules of Court (2014 Rev Ed) (“ROC 2014”) do not provide the court with a residual discretion to set aside contractual consent orders" — Per Goh Yihan JC, Para 7

That procedural discussion also served a larger purpose. It underscored that the court was not casually reopening a settled interlocutory judgment. Instead, the applicant had to overcome both procedural and substantive obstacles, and the court’s analysis of prospective overruling became the decisive substantive issue. (Para 7) (Para 13)

What Legal Test Did the Court Apply to Decide Whether Salmizan Should Operate Prospectively?

The court said that the applicable law was settled by Adri Anton Kalangie v Public Prosecutor, which the judge was bound to follow. The judgment then set out the four principles from Adri governing prospective overruling. These principles were central to the court’s reasoning and were treated as the controlling framework for deciding whether Salmizan should be confined to prospective effect. (Para 14) (Para 15)

"The applicable law in this regard has been settled by the Court of Appeal decision of Adri Anton Kalangie v Public Prosecutor [2018] 2 SLR 557 (“Adri”), which I am bound by" — Per Goh Yihan JC, Para 14

"First, it is only in an exceptional case that a court may exercise its discretion to invoke the doctrine of prospective overruling." — Per Goh Yihan JC, Para 15(a)

"Second, it follows from the exceptionality of the doctrine of prospective overruling that it should only be invoked in circumstances where a departure from the ordinary retroactivity of a judgment is necessary to avoid serious and demonstrable injustice to the parties or to the administration of justice." — Per Goh Yihan JC, Para 15(b)

"Third, as the Court of Appeal alluded to in Hue An Li at [124], judicial pronouncements are by default retroactive." — Per Goh Yihan JC, Para 15(c)

"Fourth, the onus of establishing that there are grounds to limit the retroactive effect of a decision should ordinarily be on whoever seeks to do so" — Per Goh Yihan JC, Para 15(d)

The court also noted that civil cases justifying prospective overruling are likely to be few and far between. That observation reinforced the exceptional nature of the doctrine and signaled that the applicant had to show more than mere inconvenience or litigation difficulty. The court’s analysis therefore proceeded by asking whether this case was truly exceptional in the sense required by Adri. (Para 15(a))

"civil cases presenting exceptional circumstances that justify invoking the doctrine of prospective overruling are likely to be few and far between" — Per Goh Yihan JC, Para 15(a)

Why Did the Court Conclude That This Was an Exceptional Civil Case?

Applying Adri, the court concluded that this was an exceptional case for prospective overruling to apply to a civil case. The judge expressly stated that conclusion after considering the history of the prior approach, the extent of the change introduced by Salmizan, the foreseeability of that change, and the reliance placed on the earlier position. The reasoning was cumulative rather than isolated: each factor supported the conclusion that retroactive application would be unfair and disruptive. (Para 17)

"Applying the principles laid down in Adri, I conclude that this is an exceptional case for the doctrine of prospective overruling to apply to a civil case." — Per Goh Yihan JC, Para 17

First, the court found that the previous approach was well-entrenched. The judgment explains that, before Tan Woo Thian, it was common practice for parties in motor accident claims to enter interlocutory judgment by consent on the understanding that the defendant could challenge causation of injuries in toto at the assessment of damages stage. The court relied on the observations in Kek Lai Quan and Eliora Yow to show that this was not an isolated practice but a settled one. (Para 27) (Para 28)

"First, it is clear that the previous approach, where parties could reserve all issues of causation to the AD stage, was well-entrenched." — Per Goh Yihan JC, Para 27

"it was common practice for parties to motor accident claims to enter interlocutory judgment by consent on the understanding that the defendant would be allowed to challenge the causation of injuries in toto at the assessment of damages" — Per Goh Yihan JC, Para 27

"To similar effect are the statements of the learned Deputy Registrar Kevin Kwek in the Magistrate’s Court decision of Eliora Yow (an infant suing by her father and litigation representative, Yow Tuck Meng Jerry) v Kwa Kian Peng [2020] SGMC 44 at [10]" — Per Goh Yihan JC, Para 28

Second, the court held that the departure from the previous approach was extensive. The judgment explains that Tan Woo Thian marked the beginning of the shift, and that the change was not a minor refinement but a significant reorientation of how causation issues were to be handled. The court also referred to Gannison as reflecting the practical consequences of that shift. (Para 29) (Para 28)

"Second, it is clear that the departure from the previous approach has been extensive." — Per Goh Yihan JC, Para 29

"This shift began with the Court of Appeal decision in Tan Woo Thian v PricewaterhouseCoopers Advisory Services Pte Ltd [2021] 1 SLR 1166 (“Tan Woo Thian”)." — Per Goh Yihan JC, Para 29

Third, the court found that the departure from the previous approach was not foreseeable. The judgment notes that the State Courts Practice Directions 2014 and 2021, together with the earlier practice in the State Courts, reflected the old understanding. In that context, parties entering interlocutory judgments before Salmizan would not reasonably have anticipated that causation could later be challenged in the way Salmizan required. (Para 30) (Para 31)

"Third, it is clear that the departure from the previous approach was not foreseeable." — Per Goh Yihan JC, Para 30

Fourth, the court held that there would have been much reliance on the previous approach. The judgment points to the practical reality that parties and insurers structured settlements and interlocutory judgments on the assumption that causation could be dealt with at the assessment of damages stage. The court also observed that allowing Salmizan to apply retroactively would unravel many interlocutory judgments entered on the basis of the previous approach. (Para 31) (Para 32)

"Fourth, there would have been much reliance on the previous approach." — Per Goh Yihan JC, Para 31

"allowing Salmizan to apply retroactively would mean the unravelling of many interlocutory judgments that were entered into on the basis of the previous approach." — Per Goh Yihan JC, Para 32

How Did the Court Use Comparative and Policy Reasoning to Support Prospective Overruling?

The court did not rely only on local authorities. It also referred to comparative examples and policy considerations to explain why prospective overruling was appropriate. The judgment cites In re Spectrum Plus Ltd for the idea that prospective overruling avoids gravely unfair and disruptive consequences, and it invokes Joseph Raz for the proposition that the law should be such that people can be guided by it. These references were used to reinforce the rule-of-law rationale behind limiting retroactivity. (Para 32)

"which is what the doctrine of prospective overruling seeks to avoid (see the House of Lords decision of In re Spectrum Plus Ltd (in liquidation) [2005] 2 AC 680 at [40], cited with approval in Adri at [40])." — Per Goh Yihan JC, Para 32

"the law should be such that people will be able to be guided by it" — Per Goh Yihan JC, Para 32

The judgment also referred to Public Prosecutor v Dato’ Yap Peng and Re Manitoba Language Rights as comparative examples showing that courts have, in appropriate circumstances, limited the temporal effect of judicial decisions to avoid injustice and preserve legal order. Those examples were not treated as controlling, but as illustrations of the broader principle that retroactive application is not always required where reliance and systemic disruption are significant. (Para 33)

"the Supreme Court of Malaysia (presently known as the Federal Court) applied the doctrine of prospective overruling because the previous legal position in respect of the constitutionality of a criminal provision had been relied on for some 11 years" — Per Goh Yihan JC, Para 33

"the Canadian Supreme Court granted a declaration of temporary validity in respect of its decision that all existing provincial legislation was unconstitutional" — Per Goh Yihan JC, Para 33

The court’s policy analysis was especially concerned with the practical consequences of retroactivity. It noted that if Salmizan were applied backwards, the court might have to unwind a consent interlocutory judgment entered more than five years earlier in entirely different circumstances. That would be a serious disruption, and the court treated that disruption as a strong reason for prospective overruling. (Para 34)

"This could necessitate the unwinding of the consent interlocutory judgment, which was entered more than five years ago, in entirely different circumstances" — Per Goh Yihan JC, Para 34

What Did the Court Decide About Its Own Jurisdiction to Pronounce on the Prospective Effect of Salmizan?

The court expressly held that it possessed jurisdiction to pronounce on the prospective application of Salmizan. That point mattered because the applicant was effectively asking the court to determine the temporal reach of its own earlier decision. The judge resolved that issue in the affirmative, thereby clearing the way for the substantive prospective overruling analysis. (Para 25)

"I decide that this court possesses the jurisdiction to pronounce on the prospective application of Salmizan." — Per Goh Yihan JC, Para 25

The judgment also explains that the High Court in Hue An Li had said that the doctrine of prospective overruling can apply to a first-time judicial pronouncement. That observation supported the court’s ability to address the temporal effect of Salmizan even though it was a relatively recent decision. The court therefore treated jurisdiction as established and moved on to the merits of prospectivity. (Para 23)

"the High Court in Hue An Li did say that the doctrine of prospective overruling can also apply to a “first-time judicial pronouncement” (at [125])." — Per Goh Yihan JC, Para 23

What Was the Final Effect of the Decision on Pre-30 March 2023 Interlocutory Judgments?

The court’s final holding on prospectivity was precise. It stated that a defendant who entered into an interlocutory judgment, whether by consent or not, prior to 30 March 2023 is entitled to raise issues of causation at the assessment of damages stage, even in respect of all the damage the claimant claims to have suffered. This is the practical rule that flows from the court’s application of prospective overruling to Salmizan. (Para 4) (Para 37)

"The precise effect of this decision would be 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." — Per Goh Yihan JC, Para 4

That holding is significant because it preserves the earlier procedural understanding for pre-30 March 2023 cases. The court’s reasoning means that Salmizan does not retrospectively unsettle interlocutory judgments already entered on the old basis. Instead, it governs future cases from the date of decision onward. The judgment therefore draws a clear temporal line. (Para 4) (Para 37)

"I state unequivocally that the doctrine of prospective overruling should apply in relation to Salmizan." — Per Goh Yihan JC, Para 37

Why Did the Court Dismiss the Application to Set Aside the CIJ and What Orders Did It Make?

Having rejected the applicant’s attempt to use Salmizan retroactively, the court dismissed the application in OA 607. The CIJ was to stand, and all timelines were to remain in that case. This meant that the interlocutory judgment entered in 2019 remained effective and was not reopened by the present application. (Para 36)

"For all the reasons above, I dismiss the applicant’s application in OA 607. The CIJ is to stand, and all timelines are to remain in that case." — Per Goh Yihan JC, Para 36

The court also made no order as to SUM 1288. It did not finally determine costs in the judgment itself, instead directing the parties to file written submissions on the appropriate costs order for both OA 607 and SUM 1288 within 14 days, limited to seven pages each unless they could agree. This left the costs question open for further submissions. (Para 38) (Para 39)

"For completeness, I make no order as to SUM 1288." — Per Goh Yihan JC, Para 38

"Unless they are able to agree, the parties are to tender written submissions on the appropriate costs order for both OA 607 and SUM 1288 within 14 days of this decision, limited to seven pages each." — Per Goh Yihan JC, Para 39

Why Does This Case Matter?

This case matters because it clarifies the temporal reach of Salmizan and protects interlocutory judgments entered before 30 March 2023 from being reopened on the basis of that later decision. For practitioners, that means the old understanding of causation at the assessment of damages stage continues to govern pre-Salmizan interlocutory judgments. The judgment therefore provides immediate practical certainty in a large class of motor accident claims. (Para 4) (Para 32)

"allowing Salmizan to apply retroactively would mean the unravelling of many interlocutory judgments that were entered into on the basis of the previous approach." — Per Goh Yihan JC, Para 32

The case also matters doctrinally because it is a clear application of Adri’s framework for prospective overruling in a civil context. The court emphasized exceptionality, reliance, foreseeability, and the need to avoid serious and demonstrable injustice. That makes the judgment a useful reference point for future arguments about whether a new judicial pronouncement should be confined to prospective operation. (Para 15) (Para 17)

Finally, the case is important procedurally because it reiterates that a party seeking to set aside a consent interlocutory judgment must commence fresh proceedings rather than proceed by summons in the existing action. That point will matter whenever litigants attempt to disturb consent orders after the fact. The judgment therefore has significance both for civil procedure and for the law of judgments and orders. (Para 7)

Cases Referred To

Legislation Referenced

• Rules of Court (2014 Rev Ed), including O 33 r 2 (Para 7, Para 22)
• State Courts Practice Directions 2014, para 38(1)(b) (Para 31)
• State Courts Practice Directions 2021, para 39(2) (Para 31)

Source Documents

• Original Judgment — Singapore Courts
• Archived Copy (PDF) — Litt Law CDN
• View in judgment: "Fourth, there would have been much..."
• View in judgment: "For completeness, I make no order..."
• View in judgment: "the law should be such that..."

This article analyses [2023] SGHC 189 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.