Ng Kong Choon v Tang Wee Goh [2016] SGHC 83

Introduction

Section 35 of the SCA (“s 35”) prohibits the dividing of a cause of action for the purpose of bringing two or more actions in the Subordinate Courts (now the State Courts). For the statutory prohibition to apply, the cause of action must be a single one. This judgment will consider: (a) whether one or two causes of action arise out of a tort committed on an individual where that tort results in damage to both his person and his property; and (b) whether the statutory prohibition would bar the institution of subsequent proceedings when the earlier proceedings were settled amicably without entering judgment on the merits.

Factual background

The brief facts are as follows. NKC and TWG were involved in a road traffic accident. It is common ground that TWG’s vehicle collided into the rear of NKC’s vehicle. The accident occurred on 28 May 2009, at about 7.45am, along Loyang Avenue towards Changi Village outside Loyang Valley Condominium. The two vehicles that were behind TWG’s vehicle were SFF 5753A (insured by AXA Insurance Singapore Pte Ltd (“AXA”)) and JGQ 954 (insured by Pacific Insurance Bhd (“Pacific Insurance”)). Although these two other vehicles were involved in what appeared to be a chain collision, the writs that were filed concerned the same two parties, viz, NKC and TWG, and the collision between their respective vehicles, SJC 693R and SFA 8123A.

History of the five writs

MC Suit No 7643 of 2010 (“MC Suit 7643/2010”) was filed by NKC to recover his uninsured loss on 26 March 2010 (“the Uninsured Loss Writ”). This writ was served on 30 March 2010. The uninsured loss claim was for $3,002.35 and this claim was settled for a sum of $420.32. A discharge voucher was executed on 9 May 2011 (“the 2011 Discharge Voucher”). Although the 2011 Discharge Voucher stated that the settlement was in respect of “all loss or damage”, there were two endorsements on the document. The endorsements are reproduced at [24] below. According to TWG’s insurer, NTUC Income Insurance Co-operative Limited (“NTUC Income”), the endorsements were made by NKC and/or his then lawyers, Oracle Law Corporation (“Oracle Law”). However, NTUC Income did not take issue with the endorsements as it was accepted that in MC Suit 7643/2010, what NKC had claimed for and what was settled was the claim for uninsured loss only. The Notice of Discontinuance in respect of MC Suit 7643/2010 was filed on 12 July 2011.

On 13 January 2012, NKC filed MC Suit No 1204 of 2012 (“MC Suit 1204/2012”) to recover damages for personal injury sustained in the accident (“the Personal Injury Writ”). The quantified claim amount was $400.20 being medical expenses, transport and medical report fees. General damages and Public Trustee’s administrative fees were also claimed. The Personal Injury Writ was served on 2 February 2012. The claim for personal injury was eventually settled at $883.71, and a discharge voucher was executed on 22 August 2012 (“the 2012 Discharge Voucher”). The Notice of Discontinuance in respect of MC Suit 1204/2012 was filed on 25 October 2012. Notably absent from the 2012 Discharge Voucher were endorsements similar to those found of the 2011 Discharge Voucher. The terms of the 2012 Discharge Voucher are set out in [29] below and I will return to them in due course.

Returning to the April 2011 Writ referred to at [7] above, Global Law had attempted to effect substituted service of this writ in April 2012. By then, however, the April 2011 Writ was already an expired writ. This point is not controversial as there was no order extending the validity of the April 2011 Writ. The Memorandum of Service filed by Global Law showed that the April 2011 Writ was served on NKC by way of posting a copy of the same on NKC’s front door and on the notice board of the Subordinate Courts on 2 April 2012 and 3 April 2012 respectively.

Global Law then wrote to NTUC Income on 25 May 2012 and in that communication, Global Law made reference to the April 2011 Writ. Instead of enclosing the April 2011 Writ, Global Law sent the August 2010 Writ. Notwithstanding this oversight, the fact of the matter is that the April 2011 Writ had also expired by then. Not surprisingly, NTUC Income’s lawyers, Lawrence Chua & Partners (“LCP”), responded on 30 May 2012 and requested a copy of the order extending the validity of the August 2010 Writ. Global Law’s letter of 5 July 2012 requested LCP to accept service of the April 2011 Writ.

Summons No 9210 of 2013 to strike out the Repairs Writ

On 1 July 2013, TWG filed Summons No 9210 of 2013 to strike out MC Suit 11423/2013 (ie, the Repairs Writ) pursuant to O 18 r 19(1)(b) and (d) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“ROC 2006”). The supporting affidavit covered two points: (a) that TWG was again being vexed for the same cause of action by the Repairs Writ; and (b) that the Repairs Writ was in breach of s 35.

Second is Mr Yek’s point on res judicata. The claims for uninsured loss and personal injury were settled without proceeding to trial on the merits. As the relevant MC Suits were settled without judgment being entered, there is no room for the operation of what the High Court in Goh Nellie v Goh Lian Teck and others [2007] 1 SLR(R) 453 (at [17]) referred to as the umbrella doctrine of res judicata and its three conceptually distinct though interrelated principles (ie, cause of action estoppel, issue estoppel and abuse of process). In this regard, it suffices to say for now that this appeal concerns the statutory prohibition against claim-splitting that debars subsequent actions, and that this statutory prohibition is quite different from the doctrine of res judicata.

Before moving on, it is worth noting that while s 35 is found in the part of the SCA that deals with the civil jurisdiction of District Courts, the same provision would equally apply to Magistrates’ Courts by virtue of s 52(2) of the SCA. It was accepted below that the legislative provision in s 35 applies to actions filed in Magistrates’ Courts even though the District Judge did not refer to s 52(2) in her written decision in Ng Kong Choon v Tang Wee Goh [2013] SGMC 9. The SCA is now called the State Courts Act (Cap 321, 2007 Rev Ed), and the same provisions are found in ss 35 and 52(2) therein.

Decision of the District Judge

In coming to her conclusion, the District Judge relied on s 18 of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”). Sub-paragraph (2) of this section states that the High Court shall have the powers set out in the First Schedule. In turn, paragraph 9 of the First Schedule reads:

Issues in RAS 166/2013

As I had earlier alluded to in brief, there are two issues that arose for consideration in RAS 166/2013. They are: (a) the compromise argument; and (b) whether, independent of the compromise agreement, NKC’s present claim is nevertheless prohibited by s 35 (“the s 35 issue”).

The compromise argument

The 2011 Discharge Voucher

As mentioned, NKC signed two discharge vouchers: the 2011 Discharge Voucher and the 2012 Discharge Voucher. The scope and effect of the 2011 Discharge Voucher is clear and, for this reason, it is the 2012 Discharge Voucher that is the focus of the compromise argument. Be that as it may, a consideration of the 2011 Discharge Voucher is desirable as it provides some context to the 2012 Discharge Voucher.

The 2011 Discharge Voucher was signed by NKC and witnessed by one Song Kok Him. Its main text reads as follows:

In addition to the main text, two endorsements were stamped on the face of the 2011 Discharge Voucher. The first endorsement simply reads: “WITHOUT PREJUDICE TO INJURY CLAIM”, whereas the second states as follows:

There is nothing unusual about partial releases. John Birds, Ben Lynch & Simon Milnes, MacGillivray on Insurance Law (Sweet & Maxwell, 13th Ed, 2015), observed (at para 24-054) that “[i]t is possible to conceive of a release being held to be, in its context, an incomplete release, so that there could still be a claim, made on behalf of the insurers, in respect of that portion of the loss which was covered by insurance”.

Similarly, in Foskett on Compromise (David Foskett gen ed) (Sweet & Maxwell, 8th Ed, 2015) (“Foskett”), it is said (at para 22-04) that:

The 2012 Discharge Voucher

I now turn to the 2012 Discharge Voucher. The 2012 Discharge Voucher was executed by NKC and witnessed by one Ong Hwee Ling, Pauline. The main text of it reads as follows:

I begin with some general comments. First, there can be an abuse of process in litigating issues which have already been determined in prior litigation or concluded by way of settlement (see Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1). In the case of a settlement, the court will have to consider the nature and scope of the settlement having regard to all the circumstances of the case. Thereafter, it will apply a broad-based approach to see if, despite the settlement, the later action is, in all the circumstances, an abuse of process.

My second comment pertains to the nature of a general release. Foskett explains a general release in the following terms (at para 5-23):

My third comment then relates to the interpretation of a general release. The House of Lords in Bank of Credit and Commercial International SA v Ali and others [2002] 1 AC 251 (“BCCI”) had the opportunity to consider what rule of interpretation, if any, applies to a general release. The facts of that case are different from the case at hand: at the time of the release, the facts giving rise to the claim sought were not known to the plaintiff and the claim was, in any event, not permitted in law. Notwithstanding, the various speeches in the House of Lords are instructive in setting out the approach taken in interpreting a general release. In this regard, Lord Bingham of Cornhill stated as follows (at [8]):

In a similar vein, Lord Nicholls of Birkenhead stated (at [26], [28] and [29]) that:

What comes across strongly in the above passages is that in determining the scope of a release, the court must give effect to the intention of the parties as ascertained from the context in which the release was given. The same approach to construction resonates in Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd [2008] 3 SLR(R) 1029.

Put simply, the generality of the wording in a release has no greater reach than what is indicated by the context in which the release was given. What, then, was the context in which the release was given, and what was the intention of the parties as ascertained from this context? It is to these questions that I now turn.

Second, NTUC Income had itself taken the position that the 2012 Discharge Voucher was only intended to cover the claim for personal injury. NTUC Income’s affidavit stated as follows:

I now turn to the s 35 issue.

The s 35 issue

The arguments

Both Mr Yek and counsel for Allianz, Mr Liew Teck Huat (“Mr Liew”), informed the court that there are no local cases on s 35. Mr Liew’s position taken before the District Judge and in RAS 166/2013 was the same. First, a wrongful act committed by a defendant and resulting in damage to person and damage to property gives rise to one cause of action. Second, there was no pending action at the time the Repairs Writ was filed. As such, s 35 does not apply to the Repairs Writ. In his view, there must be two pending actions in existence at one time for s 35 to apply. In contrast, Mr Yek argues that NKC had impermissibly divided his cause of action in contravention of s 35 and that the present action was rightly struck out even though the earlier suits had been settled.

Object and ambit of s 35

Section 35 of the SCA reads as follows:

The statutory language of s 35 contemplates one action for one cause of action. The whole case which the plaintiff is entitled to make in respect of a cause of action must be brought in one action in a court of limited jurisdiction. The expression “[a] cause of action” in s 35 is referable to a single indivisible cause of action. It is unlawful for a plaintiff in any court of limited jurisdiction to divide his cause of action and sue one part in the District Court and the other part or parts in the same court or another court of limited jurisdiction, such as a Magistrate’s Court.

What is a single cause of action for this purpose is a question of fact. I will elaborate on this later. Suffice to state for now that s 35 does not apply if there are two or more causes of action. A case that aptly illustrates the application of this statutory prohibition is Davidson v North Down Quarries Limited [1988] NI 214 (“Davidson”), a decision of the High Court of Northern Ireland. In that case, there was no breach of the provision that is equivalent to s 35 because there were two causes of action. Nicholson J followed the decision of the English Court of Appeal in Brunsden v Humphrey (1884) 14 QBD 141 (“Brunsden”) and accepted the proposition that a wrongful act resulting in personal injury and property damage gave rise to two causes of action. I will return to the decision in Brunsden later in the course of this judgment when analysing the elements of s 35.

Davidson is also notable because of its striking similarities to the present case. The plaintiff in that case was driving his motor car when he sustained a “whiplash” injury in an accident which did not involve any other motor vehicle. His motor car was also damaged and he alleged that the defendants were to blame for the accident. The plaintiff personally brought civil bill proceedings against the defendants founded on the tort of negligence in respect of his personal injuries only and these proceedings were settled without a hearing on the merits. The plaintiff settled his claim for the damage to his motor car with his insurer, which was then subrogated to his rights against the defendants. The plaintiff’s insurer later brought civil bill proceedings in the plaintiff’s name against the defendants based on the tort of negligence in respect of the damage to his motor car after settlement of his claim in respect of personal injury. A preliminary objection was taken on behalf of the defendants on the basis of article 36 of the County Courts Order (Northern Ireland) 1980 (S.I. No 397, N.1. 36), which read as follows and which is substantially similar to s 35:

For now, I highlight two relevant aspects of the decision. The first is that the defendants in that case had objected that the second proceedings were res judicata and an abuse of process of the court. These arguments were rejected as there was no adjudication on the merits and the plaintiff’s personal injury claim was settled instead. That there can be no res judicata without a determination of the merits harks back to the point made at [15] above. The second matter to be highlighted is the plaintiff’s contention in Davidson that the settlement in the first action was only in respect of the personal injury claim. Nicholson J agreed with this submission and found that the terms of the settlement of the first action contained an implied term that the claim for insured loss was excluded from the settlement. However, there was no bar to the plaintiff’s action based on article 36 of the County Courts Order (Northern Ireland) 1980 as the plaintiff’s personal injury claim and property damage claim, whilst arising from the same set of facts, gave rise to two causes of action.

I will examine two questions in this judgment:

(a) whether Brunsden should be followed in Singapore; and

(b) whether the statutory prohibition in s 35 would bar the institution of subsequent and later proceedings when the earlier proceedings were settled amicably without entering judgment on the merits.

Like the District Judge, I find that parliamentary debates are of limited assistance in so far as s 35 is concerned. However, several foreign cases provide a useful guide. I have already referred to Davidson where the court looked at a similar statutory provision in Northern Ireland and the approach taken by the High Court of Northern Ireland to claim-splitting.

A perusal of foreign cases dealing with statutory provisions that are equivalent or similar to s 35 shows that the provisions are intended to operate in courts of limited jurisdiction. In defining the limits of the jurisdiction of such courts, a plaintiff who sues in a court of limited jurisdiction is not permitted to indulge in claim-splitting of his single cause of action in order to bring two or more actions. It is instructive, at this juncture, to refer to Kaye J’s observations in Pioneer Concrete, a case before a court of unlimited jurisdiction. Kaye J said (at 481) that:

It is not without significance that the statutory prohibition against dividing a single indivisible cause action is confined to courts of limited jurisdiction. Provisions expressed in similar terms as s 35 appear in foreign legislations governing courts of limited jurisdiction. It is immediately evident that the provisions bear much similarity to the scheme of the SCA on three main fronts: (a) jurisdiction of the inferior courts; (b) abandoning the excess part of the claim to give jurisdiction; and (c) division of a single cause of action.

To illustrate, I begin with the case of In re Aykroyd, in a Plaint of Grimbly v Aykroyd (1847) 1 Ex. 479 (“Aykroyd”). In that case, the relevant provision was the 63rd section of the Small Debts Act, 9 & 10 Vict. c. 95, which read as follows:

Halsbury’s Laws of England vol 24 (LexisNexis, 5th Ed, 2010) at para 767 refers to the latest County Courts Act 1984 (c 28) (UK). Section 35 of the Act reads:

The other relevant provisions are the definition of “the county court limit” in s 147(1) and the provision providing for the abandonment of the excess part of the claim to give jurisdiction in s 17(1).

In Victor Romans v Bradley Barrett (1979) 28 WIR 99 (“Victor Romans”), the Court of Appeal of Jamaica considered a similar provision in s 73 of the Judicature (Resident Magistrates) Act which read as follows:

In Lun Tai Insurance Co. Ltd. and Lee Ying-Lin alias Lee Kwok-Kee [1965] HKCU 85, the relevant provision was s 16 of the District Court (Civil Jurisdiction and Procedure) Ordinance (Cap 336), which read as follows:

In his judgment, Huggins J considered the decision in Aykroyd and noted that:

Returning to Aykroyd, Pollock CB, in construing the subject provision, considered (at 488─489) the “old rule of the common law as to the jurisdiction of the county court”, and noted as follows:

While Pollock CB made it clear (at 488 and 490) that his task was to apply the relevant provision and not the “old rule of the common law as to the jurisdiction of the county court”, I am of the view that the above passage nevertheless remains instructive in my determination of the purpose of s 35.

The Jamaican Court of Appeal in Victor Romans relied heavily on English cases. Carberry JA, in prefacing his review of the authorities, noted (at 104), inter alia, the following:

To Carberry JA, therefore, the purpose of the provision is to recognise, in the context of a court of limited jurisdiction, the principle that a plaintiff must bring forward all of his case at one time. This principle is taken together with the principle of res judicata.

As stated, the scheme evident in the foreign provisions – jurisdiction of the inferior courts, abandoning the excess part of the claim to give jurisdiction, and division of a single cause of action – is similarly found in the SCA albeit in separate sections of the legislation. There are sections that set up and establish the jurisdictional limit of the District Courts and the Magistrates’ Courts, and there are provisions allowing a plaintiff to abandon any excess amount over the limit of the jurisdiction. Allied to the provisions that give effect to the limited jurisdiction of the District Courts and the Magistrates’ Courts is the requirement that a plaintiff with a single cause of action must bring forward all of his case in one action. He is not permitted to divide or split his cause of action by suing separately for different heads of damage. This explains the statutory language of s 35 that prohibits the division of a single cause of action for the purpose of bringing two or more action in the Subordinate Courts (now the State Courts). For convenience, the various sections referred to in this paragraph are set out in Annex A to this judgment.

I should add that the prohibition against claim-splitting in s 35 is not fettered by language (whether express or implied) that requires a final judgment in the first action. Whilst a final judgment is required for an application of the doctrine of res judicata, it is not a requirement imposed by the rule against claim-splitting which does not fall within a conventional res judicata analysis. Section 35 is a statutory prohibition that is allied to the limited jurisdiction of the Subordinate Courts (now the State Courts) and the management of cases within its jurisdiction. The test of claim-splitting is not determined by whether there is a prior judgment but whether the requirements of s 35 are satisfied (see [65] below).

To illustrate, the prohibition in s 35 applies to actions brought in the District Courts or the Magistrates’ Courts. The civil jurisdiction of a Magistrate’s Court is generally capped at $60,000 (see s 52(1A)(b) read with s 2 of the SCA). A plaintiff who has a claim for $100,000 based on a single cause of action should therefore properly sue in a District Court. The rule against claim-splitting that finds expression in s 35 requires this plaintiff to assert the whole of his case based on a single cause of action in one action in a District Court. Spreading claim amounts around in multiple actions (for example, one action with a claim amount of $65,000 in a District Court and a second action with a claim amount of $35,000 in a Magistrate’s Court) is prohibited by s 35. The same prohibition applies where two actions with a claim amount of $50,000 each are brought in the Magistrates’ Courts before different judges.

What happens in a situation where the total claim amount is within the jurisdictional limit of the Magistrates’ Courts and claim-splitting is practised? This was the question expressly left open by Pollock CB in Aykroyd (at 493). In my view, the answer to this question must be that s 35 likewise applies to a division of a single cause of action. It is not possible for the statutory prohibition to be circumvented in this manner for the reason that the total claim amount is within the jurisdictional limit. Claim-splitting contravenes the statutory rule that requires the whole case which the plaintiff is entitled to make in respect of the same cause of action to be brought in one action. There is public interest in protecting litigants from being vexed more than once by what is really the same claim. To borrow the words of Griffiths LJ in Buckland v Palmer [1984] 1 WLR 1109 (“Buckland”) at 1116:

Requirements of s 35

I now turn to the elements of s 35. The first relates to the existence of “a cause of action”; the second involves the word “divided”; and the third concerns the phrase “for the purpose of bringing 2 or more actions”.

Single cause of action

In Brunsden, a traffic accident occurred and the plaintiff sued the defendant in the County Court for damage to his cab, by which he recovered a certain amount. Subsequently, the plaintiff sued the defendant in the High Court for injury done to his person. The majority of the Court of Appeal allowed the action for personal injuries holding that it was not barred by a payment for damages in respect of property damage recovered by the plaintiff arising out of the same accident. The decision of the majority was concerned with two separate causes of action. Brett MR held (at 145─146) that:

Agreeing with Brett MR, Bowen LJ held (at 150─151) that:

The majority’s decision in Brunsden is not without critics. Lord Coleridge who gave the dissenting judgement in Brunsden said (at 152─153) that:

In Buckland, Griffiths LJ posed the following question (at 1115):

Griffiths LJ then proceeded to state (at 1115) that “[i]n [his] opinion the general rule should be that both sums must be claimed in the same action”. Moreover, he also stated (at 1116) that:

Brunsden was not followed by the Supreme Court of Canada in Cahoon v Franks (1967) 63 DLR (2d) 274. In that case, the plaintiff sued the defendant in the District Court of the District of Northern Alberta, Judicial District of Edmonton pursuant to a traffic collision. Damages in the sum of $305 were claimed, being the value of his vehicle destroyed beyond repair in the collision. After the expiration of the statutory limitation period of 12 months, the plaintiff obtained an order giving him leave to amend his statement of claim to include a claim for personal injury and transferring the action to the Supreme Court. A further order was later obtained permitting the statement of claim to be amended to allege that as a result of the defendant’s negligence the plaintiff sustained certain injuries which left him totally disabled and unable to work. The defendant appealed against these orders on the basis that they raised a new cause of action. Delivering the judgment of the Court, Hall J held (at 278─279) that he agreed with Porter JA in the court below that Brunsden was no longer good law in Canada and ought not to be followed. Consequently, the amendments did not set up a new cause of action. In this regard, the following paragraphs from Porter JA’s judgment, which were referred to by Hall J (at 277─278), are instructive:

For the reasons set out hereunder, I agree that only one cause of action arises out of a single tort committed on an individual even though that tort results in damage to both his person and his property. The factual situation that gives a plaintiff in a road traffic accident a cause of action is the negligence of the other driver which caused the plaintiff to suffer damage. In my view, Brunsden is not good law in Singapore.

This reading is, in turn, entirely consistent with the Court of Appeal’s seminal decision on the law of negligence in Singapore in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100 (“Spandeck”). In Spandeck, the Court of Appeal established (at [71]) “a single test… in order to determine the imposition of a duty of care in all claims arising out of negligence” [emphasis in original]. Crucially, this single test is “irrespective of the type of the damages claimed” [emphasis in original] (at [71]) and should be applied “regardless of the nature of the damage caused (ie, pure economic loss or physical damage)” (at [115]). In the context of the test for the existence of a duty of care, Spandeck therefore did away with the distinction between pure economic loss and physical damage. This, coupled with the establishment of a single test in respect of all claims arising out of negligence, inexorably urges the conclusion that negligence is one cause of action, albeit with multiple possible heads of claim.

There are situations where a common set of facts could give rise to multiple causes of action. The decision of the Court of Appeal in Yan Jun v Attorney-General [2015] 1 SLR 752 (“Yan Jun”) illustrates this. Whilst I do not propose to go into too much detail, I observe that the plaintiff in that case had, arising from his arrest by the police, claimed damages against the Attorney-General for wrongful arrest, false imprisonment, assault and battery, excessive use of force, malicious prosecution, abuse of process and defamation. For the purposes of section 24A(2) of the Limitation Act (Cap 163, 1996 Rev Ed), the Court of Appeal had (at [86]) divided the plaintiff’s claims into two categories: claims for damages in respect of personal injuries and claims for damages which were not in respect of personal injuries. However, Yan Jun is distinguishable from the present case and, indeed, Spandeck because, in that case, the common set of facts gave rise to multiple causes of action in the proper sense of the term. This is not the same as a situation, such as the present, where a common set of facts gives rise to a single cause of action involving multiple heads of claim.

In my view, in the present case, there is only one cause of action in negligence arising from the road traffic accident between NKC and TWG.

“Divided”

Section 35 uses the word “divided” in the past tense. In the context of the rest of the section, NKC had acted in a way that “divided” his cause of action into parts as exemplified by the issuance of three writs, each for a different head of loss.

“For the purpose of bringing 2 or more actions”

As for the phrase “for the purpose of bringing 2 or more actions”, Mr Liew’s argument is that this third limb of 35 is not satisfied in that: (a) the first two writs that were filed earlier were settled and, as such, there were no “2 or more actions” within the meaning of s 35; and (b) there was no other pending action at the time the Repairs Writ was filed. To Mr Liew, s 35 applies only when there are proceedings in existence claiming damages based upon a particular cause of action, and a second action is begun based upon the same cause of action. Mr Liew’s interpretation would involve reading the word “bringing” in s 35 as meaning “bringing and maintaining”. As highlighted by Mr Yek before the District Judge, the word “maintaining” is nowhere to be found in the provision.

In my view, there is nothing in the statutory language (express or implied) that supports Mr Liew’s interpretation of s 35. I agree with the District Judge that there is no statutory exception suffixed to s 35 stating, for example, that the provision does not apply when there was no other pending action. Mr Liew’s interpretation ignores the fact that NKC had acted in a way that involved him having sued TWG twice previously in the Magistrates’ Courts for the same negligence in 2010 and 2012. All three writs, the Uninsured Loss Writ (2010), the Personal Injury Writ (2012) and the Repairs Writ (2013) were served.

I am of the view that the subjective intention of a plaintiff to divide his single cause of action “for the purpose of bringing 2 or more actions” is objectively demonstrated by his act of filing and serving multiple writs. The same would also apply where the plaintiff only files the writs but the defendant either: (a) by agreement (whether express or implied) does not enter appearance to the writs pending settlement negotiations; or (b) enters appearance gratis such that the writs are deemed to be served pursuant to O 10 r 1(3) of the ROC 2006. As stated, there is nothing in the statutory language (express or implied) that requires a prior judgment before the statutory prohibition applies to the later action.

For the sake of argument, if there are concurrent proceedings, s 35 could still operate to preclude the second action save that in such a situation the plaintiff would still have the chance to apply to the court to amend the first action in order to bring in the claim(s) of the second action. Objections to the second action on s 35 grounds could be raised at any time without having to wait until judgment on the first action. As stated, s 35 is not governed by or subject to the doctrine of res judicata.

Application of s 35

I find that all the elements of s 35 have been satisfied in the present case. The result is that the Repairs Writ was brought in contravention of s 35. A related question is whether the court has the power in appropriate circumstances to allow the action to proceed. The statutory language is clear. There is no statutory exception suffixed to s 35 providing, expressly or by implication, for the exercise of discretion. My task is to apply s 35 and not the common law “once and for all rule” that requires all claims generated by or from the same cause of action be instituted in one action (see generally the comments at [31] above). The rationale underlying the common law rule is the avoidance of multiplicity of actions with the possibility of contradictory judgments and the consideration that a defendant should not be vexed by repeated legal proceedings brought by the same party and based on the same cause or matter.

For completeness, I should mention that there were opportunities to include all the claims in one action but nothing was done. Despite Mr Liew’s view that NKC had one cause of action, claim-splitting was practised in this case. NKC appointed Oracle Law and Allianz instructed Global Law.

I start with Allianz’s contention that it did not know about the settlement of the claim for uninsured loss and the claim for personal injury. It is pertinent to note that what Allianz does not say is that it knew for a long time that NKC had three types of claims against TWG. That state of affairs was clearly borne out by the contemporaneous documents before this court. Correspondingly, from a very early stage (ie, on or before 30 June 2009), NKC’s insurer was already keenly aware of the same three claims.

The Uninsured Loss Writ was filed and served in March 2010. On 30 June 2009, Oracle Law (acting for NKC) wrote to Allianz stating the following:

NKC then proceeded to file and serve, in March 2010, the Uninsured Loss Writ. Separately, Global Law gave pre-litigation notices to TWG and NTUC Income on 26 July 2010. The August 2010 Writ and the April 2011 Writ were issued before settlement of the Uninsured Loss Writ on 9 May 2011. Global Law tried to serve the August 2010 Writ in October 2010, but failed in its attempts to do so. As for the April 2011 Writ, Global Law obtained an order for substituted service on 5 May 2011 but did not take steps to effect substituted service until April 2012. There was no explanation as to why Global Law did not write to NTUC Income about the August 2010 Writ and the April 2011 Writ before 9 May 2011. A year had lapsed before Global Law wrote to NTUC Income about the April 2011 Writ on 25 May 2012.

The Personal Injury Writ was issued in January 2012 and it was served on 2 February 2012. It was formally settled on 22 August 2012 via the 2012 Discharge Voucher. As stated, Global Law wrote to NTUC Income on 25 May 2012 and Global Law was informed by LCP on 6 July 2012 that NKC had issued writs for his uninsured loss and personal injury claim and that NTUC Income had already settled both claims. At that stage, LCP had intimated its objection to any subrogation action, relying on the Henderson rule.

On the facts of this case, Allianz would be hard-pressed to complain of prejudice as a result of not being able to incorporate the present claim in NKC’s earlier writs, as the state of affairs was largely due to the “fortuity” of failed service and overall inattentive case handling along the way.

Contractual exclusion of the operation of s 35

Observations

An insured’s duty is not to prejudice the insurer’s right of subrogation (see, for instance, Seagate Technology Pte Ltd and another v Goh Han Kim [1994] 3 SLR(R) 836 at [51]). By the same token, the insurer in exercise of subrogation rights must remember that both the uninsured and insured losses are based on a single cause of action and that judgment or settlement of the claim for insured loss could prejudice the insured’s own claim for uninsured loss. As the District Judge rightly points out, co-ordination between the insured and his insurer in litigation is important and key.

Where personal injury is involved, the insured should bring his claim for personal injury at the same time as the subrogated claim. Should there be a concern that his injury could subsequently worsen, the insured may make an application for provisional damages under s 18(2) read with paragraph 16 of the First Schedule of the SCJA (see, for instance, Koh Chai Kwang v Teo Ai Ling (by her next friend, Chua Wee Bee) [2011] 3 SLR 610). This power is presumably extended to the District Courts pursuant to section 31(1) of the State Courts Act and to the Magistrates’ Courts pursuant to section 52(1B)(a) of the same legislation.

Typically, road traffic accident claims are relatively small and they ought to be settled without litigation. The Court of Appeal, albeit in a different context, has alluded to the public policy of encouraging litigants to settle their differences rather than to litigate them to the finish (Greenline-Onyx Envirotech Phils, Inc v Otto Systems Singapore Pte Ltd [2007] 3 SLR(R) 40 at [14]), and I am in full agreement with this.

In this case, Notices of Discontinuance were filed after settlement. One approach that could have been adopted was not to discontinue the action but for the settlement to provide for a stay of the action pending amendment of the writ to bring in other claims based on the same cause of action between the same parties.

Conclusion

Annex A