ON APPEAL FROM THE SUPREME COURT OF Limitation of Actions-Statutory interpretation-Provision that actions which might
formerly have been brought in the form of action called action on the case or which would formerly have been brought in the form of action called trespass on the case should, " save as otherwise provided in this Act " be commenced within six years of accrual of cause of action-Provision in following section that actions for trespass to the person should be commenced within three years of date of accrual-Action for damages for personal injuries sustained by being struck in street by vehicle driven by defendant in negligent manner-Period of limitation applicable-Limitation of Actions Act 1936-1948 (No. 2268 of 1936- - No. 45 of 1948) (S.A.), 88, 35, 36.
(c) actions which formerly might have been brought in the form of actions called actions on the case libel malicious prosecution arrest or seduction and any other actions which would formerly have been brought in the form of actions called trespass on the case: shall, save as otherwise provided in this Act, be commenced within six years next after the cause of such action accrued but not after." 36. All actions for assault trespass to the person menace battery wounding or imprison- ment shall be commenced within three years next after the cause of such action accrued but not after" A plaintiff brought an action to recover damages for personal injuries sustained by him, he alleged, in consequence of being struck while riding his bicycle in the street by a motor truck driven by the defendant in a negligent manner. The action was commenced more than three but less than six years after the date of the occurrence.
Held (1) that the action formerly might have been brought in the form of action called action on the case and would formerly have been correctly brought in the form of action called trespass on the case.
(2) that on the facts the cause of action might have been laid as trespass to the person.
(3) that on the true construction of S. 35 the words " save as otherwise provided in this Act " did not operate to bar causes of action falling within S. 35 brought within six years because the same facts would also support a cause of action falling within 8. 36.
(4) that the plaintiff having elected to rely on a cause of action falling within S. 35 the period of limitation applicable was six years.
Decision of the Supreme Court of South Australia (Full Court), affirmed.
APPEAL from the Supreme Court of South Australia.
On 19th July 1955 Ettore Milotin by his next friend Maria Milotin commenced an action in the Supreme Court of South Australia against Derek John Williams. The statement of claim alleged that on 7th May 1952, the plaintiff was riding a bicycle…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Williams v Milotin [1957] HCA 83
Case
[1957] HCA 83
Decision Date
CaseChat Overview and Summary
The case of *Williams v Milotin* involved an appeal to the High Court of Australia from a decision of the Supreme Court of South Australia. The plaintiff, Ettore Milotin, an infant suing by his next friend, sought damages for personal injuries sustained when he was struck by a motor truck driven by the defendant, Derek John Williams. The collision occurred on 7 May 1952, and the action was commenced on 19 July 1955, meaning it was brought more than three years but less than six years after the cause of action accrued. The defendant argued that the action was barred by section 36 of the *Limitation of Actions Act 1936-1948* (S.A.), which prescribes a three-year limitation period for actions for trespass to the person.
The central legal issue before the High Court was to determine the applicable period of limitation for the plaintiff's claim. This required the Court to interpret sections 35 and 36 of the *Limitation of Actions Act 1936-1948* (S.A.). Section 35 generally provides a six-year limitation period for actions that "formerly might have been brought in the form of actions called actions on the case" or "would formerly have been brought in the form of actions called trespass on the case," subject to the qualification "save as otherwise provided in this Act." Section 36, conversely, imposes a three-year limitation period for actions for assault, trespass to the person, menace, battery, wounding, or imprisonment. The Court had to decide whether the plaintiff's action, arising from a negligent collision on a public road, fell within the six-year period of section 35 or the three-year period of section 36.
The High Court reasoned that while the facts of the case could have supported a cause of action in trespass to the person, which would ordinarily fall under the three-year limitation period of section 36, the plaintiff had framed his action in negligence. The Court held that the phrase "save as otherwise provided in this Act" in section 35 was not intended to override the six-year limitation period simply because the same facts might also support a cause of action falling under section 36. Instead, these words were interpreted as referring to other provisions within the Act that might extend or modify limitation periods, such as those relating to disability or absence from the state. The Court concluded that the plaintiff was entitled to rely on the six-year limitation period applicable to actions on the case, which encompassed negligence claims for personal injury, as this was the cause of action he elected to pursue.
Consequently, the High Court affirmed the decision of the Supreme Court of South Australia, holding that the plaintiff's action was not barred by section 36. The appeal was dismissed, and the defendant was ordered to pay the costs of the appeal.