High Court rules that insurance companies and insured persons cannot maintain separate action on same set of facts

Where an insurance company insures a person against particular types of losses that may arise from an unforeseen event, upon payment of insurance monies, the insurance company is entitled to step into the shoes of the party it insures and to pursue a claim against the party who caused the loss. This right is known as the right of subrogation. As such, there are occasions where the insured person will commence action for his uninsured losses; whilst the insurer will separately commence action, on the same set of facts and against the same defendant, for the losses insured under its right of subrogation.  It was thought that the English Court of Appeal’s decision in Brunsden v Humphrey (1884) 14 WBD 141 (“Brunsden”) supported the position that both the insured and insurer could sue the same defendant in two different legal action arising from the same facts.

That position was rejected by Justice Belinda Ang in the recent High Court decision of Ng Kong Chon v Tang Wee Goh [2016] SGHC 83 (“Ng Kong Chon”) where her Honour held that section 35 of the State Court Act prohibits a Plaintiff from dividing a single cause of action for the purposes of bring two or more action in the State Courts. The High Court observed that a  clear contravention of section 35 would be the division of a cause of action to sue one part in the District Court and the other part or parts in the same court or Magistrate Court. In her decision, Ang J are referred to the Canadian Supreme Court decision of Cahoon v Franks (1967) 63 DLR (2d) 274 and the dicta in Spandeck v DSTA [2007] 4 SLR(R) 100  to support her rejection of the English CA’s decision in Brunsden.

The impact of this case

The decision in Ng Kong Chon affects an insurer’s ability to make subrogated claims if their insured had earlier settled their claims with or brought a claim, which arises out of a common set of facts, against the defendant. Moving forward, insurers should be mindful of claim-splitting when exercising their rights to claim for insured sums paid out under subrogated to them; all claims arising from the same cause of action should be instituted in one action.  As rightly observed by the High Court in Ng Kong Chon, co-ordination between the insured and his insurer in litigation is key. The insurers should therefore ensure that the insured’s rights to make claims for their uninsured losses are not compromised; failure to do so would expose insurer’s to claims of negligence by their insured.

Should you have any queries pertaining to this article, please feel free to contact Mr M Ramasamy at rama@straitslaw.com.sg or the director who usually attends to your matters.