Williams v Milotin [1957] HCA 83

Williams v Milotin [1957] HCA 83

On the true construction of the Act, a plaintiff who elects to sue in negligence for personal injury (as an action on the case) is entitled to the six-year limitation period in s. 35, notwithstanding that the facts might also permit a trespass claim; s. 36 does not bar the action if pleaded in negligence.

Parties
Appellant; Defendant: Derek John Williams; Respondent; Plaintiff: Ettore Milotin (by his next friend Maria Milotin)
Jurisdiction
Australia
Procedural Posture
Appeal / Appeal From Interlocutory Order of Supreme Court of South Australia (full Court) to the High Court of Australia
Outcome
appeal dismissed with costs
Legal Topics
Limitation of Actions, Personal Injuries, Trespass to the Person, Negligence, Statutory Interpretation
Tort Law Civil Procedure Limitation of Actions Personal Injuries Trespass to the Person Negligence Statutory Interpretation

Case Brief

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Parties

Derek John Williams

Appellant; Defendant

Ettore Milotin (by his next friend Maria Milotin)

Respondent; Plaintiff

Procedural Posture

Appeal / Appeal From Interlocutory Order of Supreme Court of South Australia (full Court) to the High Court of Australia

Legal Issues

  1. 1 Whether an action for damages for personal injuries caused by negligent driving is barred by s. 36 (three-year limitation) of the Limitation of Actions Act 1936-1948 (S.A.) or falls within s. 35 (six-year limitation).

Ratio Decidendi

On the true construction of the Act, a plaintiff who elects to sue in negligence for personal injury (as an action on the case) is entitled to the six-year limitation period in s. 35, notwithstanding that the facts might also permit a trespass claim; s. 36 does not bar the action if pleaded in negligence.

Court Disposition

appeal dismissed with costs

Orders

  • Appeal dismissed with costs.