Detailed Analysis of Williams v Milotin and Tort Law Implications

This report provides a comprehensive analysis of the tort law case Williams v Milotin [1957] 97 CLR 465, focusing on the intersection of trespass and negligence. The case examines whether an action can be framed in both trespass and negligence based on the same facts, and the instances where trespass may be more advantageous to a plaintiff. The report explores the litigation history, material facts, and major issues highlighted in the case. It delves into the present state of the law on trespass to the person, the court's decision and reasoning, and the implications of the case, including its impact on subsequent legal precedents such as Parsons V Partridge (1992) and Wilson v Horne (1974). The analysis also considers the application of limitation periods under the relevant legislation, particularly the South Australian Limitation of Actions Act. The report concludes with a critique of the case and its broader implications on tort law principles in Australia. The judgment in Williams v Milotin established that in the instance of direct injury caused by negligence, the plaintiff has the right to choose the limitation period. This choice is between three years in case of trespass or six years in the case of negligence.

Running head: TORT LAW
Tort Law
Student Name
University Name

2TORT LAW
Table of Contents
Introduction......................................................................................................................................2
Litigation history.............................................................................................................................3
Material facts of the case.................................................................................................................4
Major issues highlighted..................................................................................................................5
Present situation of law on Trespass to the person and decision and reasoning..............................6
Critique and Implications of the case..............................................................................................7
Conclusion.....................................................................................................................................13
Bibliography..................................................................................................................................14
Introduction
The below case study discusses about tort law and major tort law question “Is it possible to
frame an action in both trespass and negligence based on the same set of facts? If so, identify
instances when trespass may be more attractive to a plaintiff? This paper discusses about the
case Williams v Milotin [1957] 97 CLR 465 and major significance and implications of the
decision. This case is related to trespasses and negligence. The high court took a different
approach for this case:- Williams v Milotin [1957] 97 CLR 465. The high court has dismissed the
appeal of the plaintiff. However, the High Court was compelled to give some attention to the
rules by regulating the limits of trespass due to occurrence of personal injuries. However, the
court gave a concise statement and pointed out that there was no suggestion that the defendant
had intended to strike him, Due to this reason, the appeal was dismissed.

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Litigation history
As defined by Limitation Act 1969, action of trespass will be completed when trespass occurred,
however, it can be only sued within a certain amount of time which is either 3 years or 6years.
Three years is applicable when there is any action required for trespass to the person cases and 6
years for all the other cases. This law cannot be considered as flexible. Trespass is defined as
“actionable per se – no evidence of damage required”1
There are several elements of Trespass. These are as follows:-
 Voluntary interference
 Direct Interference
 Interference without consent2.
There are several statutory provisions involved in the given case. It has been mentioned that any
form of action called trespass on the given case should be saved as otherwise provided in the Act
and needs to be commenced within six years of accrual of cause of action. In case of trespass to
the person, it is required to be commenced within three years of date of event as per - Limitation
of Actions Act 1936-1948 (No. 2268 of 1936 - No. 45 of 1948) (S.A.), ss. 35, 363
1 Burkhart, Ann M., "Takings And Trespass: Trespass Liability For Precondemnation
Entries" [2007] SSRN Electronic Journal
2 Hamson, C. J., "Tort—Trespass, Nuisance, Negligence—Pleading" (1956)
14(01) The Cambridge Law Journal
3 Hamson, C. J., "Tort—Trespass, Nuisance, Negligence—Pleading" (1956) 14(01) The
Cambridge Law Journal

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In this case, the High Court faced a different situation which forced it to give some kind of
attention to the governing rules of trespass and different course of action. There are several rules
of trespassing4. The rule in Williams v Holland states that trespass or an action on the case is
maintainable for direct injury caused negligently5.
In Williams v Milotin, the High Court had to take and consider certain provisions of South
Australian Limitation of Actions Act (1936-1948) as per Section 35 of the Act. There were
several limitations of Actions Act (1936-1948) which was also highlighted through this case6.
Material facts of the case
There were several key facts related to the given case study. These are as follows:-
 Action in Supreme Court was commenced on 19th July, 1955
 Ettore Milotin, a friend of Milotin commenced the action against Derek John Williams
 The action was commenced more than three years though less than 6 years after the date
of occurrence of the particular event.
 The plaintiff was riding a bicycle in a public road, when he was hit by the truck of the
defendant in a negligent manner
4 Stickley, Amanda. "High Court describes the" relevant approach" to vicarious liability with
proviso that the boundaries of the principle are not marked out." Australian Civil Liability
13.9 (2016): 128-131
5 Finch, Emily, Law Express (Pearson Education Limited, 2016)
6 Hamson, C. J., "Tort—Trespass, Nuisance, Negligence—Pleading" (1956)
14(01) The Cambridge Law Journal

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 The plaintiff brought the action in order to recover the personal damages as the result of
negligent driving of the truck of the defendant.7
 Defendant’s pleaded action barred by S36, however, Full court decided that it cannot be
considered as barred.8
 S36 of Limitation of Actions Act 1936-1948 infers that all actions must be commenced
within three years after the action has occurred.9
 However, S35 indicates that the actions needs to be commenced with six years after the
action has occurred10
Major issues highlighted
The major issue highlighted here is whether plaintiff’s course of action fall within S35 which
is brought in the form of trespass of the case11
Held and Judgment
 It has been inferred that the cause of action might have been due to trespass to the
person, but, it may be also been brought in order to recover a particular personal
damage caused due to the negligence of the defendant’s.
7 Handford, Peter, Intention, Negligence And Some Statutory Conundrums (2018
8 Cockburn, Tina, and Bill Madden. "Pleading intention." Precedent (Sydney, NSW) 115 (2013):
42
9 Beever, Allan, "The Form Of Liability In The Torts Of Trespass" (2011)
40(4) Common Law World Review
10 Classic.austlii.edu.au (2018) Classic.austlii.edu.au
<http://classic.austlii.edu.au/au/journals/SydLawRw/1959/17.pdf>
11 Finch, Emily, Law Express (Pearson Education Limited, 2016)

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 It is also evaluated that there was absence of any intention or a violation occurring in
the course of traffic cannot be termed as trespass
 Appeal was dismissed by the court
Present situation of law on Trespass to the person and decision and reasoning
In case of present situation, any action of trespass to the person causes a personal injury which is
directly caused by negligence. In such cases, tort of trespass overlaps with the tort of negligence
and here lies the main issue12. Due to this reason, the basic question arises, “ Is it possible to
frame an action in both trespass and negligence based on the same set of facts? If so, identify
instances when trespass may be more attractive to a plaintiff13?”
In case of Williams v Milotin, there was a difference in the judgment of High Court. They
considered that in any action occurring due to negligence, the fault is the primary element of
action but an exception on behalf of the parties. In short, in case of absence of any intention, any
kind of violation cannot be considered as actionable as a trespass. The given case study have any
significance that can be considered of having a wider impact14. In addition to this, it can be also
inferred that where both the elements of negligence and trespassers met, both the elements will
be available to the defendant as per the judgment of High Court in case of Williams v Milotin15.
12 Stickley, Amanda. "High Court describes the" relevant approach" to vicarious liability with
proviso that the boundaries of the principle are not marked out." Australian Civil Liability 13.9
(2016): 128-131
13 Williams Group Australia Pty Ltd v Crocker [2016] NSWCA 265 (22 September 2016)
14 Thompson v Palmer (1933) 49 CLR 507, 547 (Dixon J).
15 Mullins, Gerard, and Susan Griffiths. "Intentional torts and the civil liability legislation."
Precedent (Sydney, NSW) 130 (2015): 15.

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Intention can be of two types which are actual intention and reckleness. Actual intention refers to
possible deemed intention where the actual result was certain to be followed. Recklessness
happens when a particular person is aware of the outcome of any action, but still goes and
complete those16. As per judgment in the case, Williams v Milotin, any act done in the absence of
intention, the given violation is not at actionable as a trespass17.
Critique and Implications of the case
There were widespread implications of the given case. Authorities prior to 1825 was not able to
rely on the progressive development of the case at the expense of trespass. As per case King V
Phillips, the common law of trespass was developed through the case of negligence. As per
Section 36 of the Limitation Act, it can be inferred that for any assault caused by trespassing,
imprisonment will be commenced within three actions of the action taken place. On the other
hand, Section 35 of the Limitation Act, infers that the number of actions must be followed
within six years after the given action has commenced18. In addition to this, according to Section
5, of Supreme Court Act of 1935, it can be inferred that the situation given in the case of
Williams v Milotin [1957] 97 CLR 465 can be considered as an action of trespass. However, it
can be also inferred that the plaintiff and his friend had intended to allege this action as a cause
of negligence on behalf of the defendant. However, there was no suggestion in the case that the
defendant had any intention to harm or strike him at any point of time19. Therefore, this particular
16 Handford, Peter, Intention, Negligence And Some Statutory Conundrums (2018)
17 Stickley, Amanda. "High Court describes the" relevant approach" to vicarious liability with
proviso that the boundaries of the principle are not marked out." Australian Civil Liability 13.9
(2016): 128-131
18 Stickley, Amanda. "High Court describes the" relevant approach" to vicarious liability with
proviso that the boundaries of the principle are not marked out." Australian Civil Liability 13.9
(2016): 128-131
19 Zines, Leslie. The High Court and the Constitution. Federation Press, 2008.

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damage cannot be considered as an act of negligence. It could have been considered as
negligence if the defendant or his servant caused any act of violence. However, such was not the
case. This can be referred from the case Williams V Holland20.
The cases of Parsons V Partridge (1992) and Wilson v Horne (1974) are examples of
implication of the case Williams v Milotin. In case of Williams v Milotin, the High Court has
established a principle that in case of direct injury caused by negligence, the plaintiff has the
right to choose favorable limitation period, which can be among three years period in case of
trespass or six years period in case of negligence. However, in case of Wilson v Horne (197421),
there was a personal injury and limitation of three years in trespass was assumed following the
same principle established in case of Williams v Milotin [1957] 97 CLR 465.22
In addition to this, it can be inferred that in case of Parsons V Partridge (1992), the reasoning of
Williams V Milotin was referred. This case was based on action taken for negligent driving of a
motor vehicle causing a personal injury and this injury was caused by defendant’s direct act.
The main issue of this case was related to the application of the limitation period. By following
the Williams V Milotin case, relevant facts for the case Parsons V Partridge was brought in the
form of action of trespass to the person as well as on the case23. In the given case, plaintiff’s had
20 Handford, Peter, Intention, Negligence And Some Statutory Conundrums (2018)
21 Handford, Peter. "Intentional Negligence: A Contradiction in Terms." Sydney L. Rev. 32
(2010): 29.
22 Cockburn, Tina, and Bill Madden. "Pleading intention." Precedent (Sydney, NSW) 115 (2013):
42
23 Classic.austlii.edu.au (2018) Classic.austlii.edu.au
<http://classic.austlii.edu.au/au/journals/SydLawRw/1959/17.pdf>

9TORT LAW
to rely on the cause of action as per part S111 of Limitations Act 1623 which refers to the
limitation period of 6 years24. However, the appeal was dismissed with adequate costs by High
Court. In early cases, trespass and various actions of the case were initially determined through
any of act which is indirect and direct injury to any concerned person25.
The judgment of Williams V Milotin case also affected the judgment of Williams V Holland
case. As per Williams V Milotin, intentional inflection of harm cannot be considered or pleaded
as a cause of negligence. Similarly, in case of Williams V Holland, action of the case can be
considered as direct act as long as it is not a willful act.26 Apart from this, the defendant in the
case Williams V Milotin inferred that the action could have been brought in trespass and not
otherwise. Same thing happened in the other case as well27.
Limitations Similar thing happened in the case of Marsha v Clive. In this case, Clive suffered a
direct injury due to negligence of Marsha who jammed Clive’s hand in the car window.
However, it was not known whether it was an intentional act or not. Therefore, other facts were
required to be established. From Williams v Milotin, it was established that where is a trespass,
there is negligence as well.
24 Burkhart, Ann M., "Takings And Trespass: Trespass Liability For Precondemnation
Entries" [2007] SSRN Electronic Journal
25 Pingree, Andrew. "Provocation as a Complete Defence to Trespass to the Person." Deakin L.
Rev. 15 (2010): 205
26 Beever, Allan, "The Form Of Liability In The Torts Of Trespass" (2011) 40(4) Common Law
World Review
27 Mullins, Gerard, and Susan Griffiths. "Intentional torts and the civil liability legislation."
Precedent (Sydney, NSW) 130 (2015): 15.

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However, in case of Letang v Cooper, the English Court of Appeal supposedly went one step
further and opined that the defendant had negligently interfered to the personal security of the
plaintiff to cause a harm to him28. It can be opined that in this case, plaintiff was sunbaking in the
car parking, when the defendant ran over his legs by his car29. As per the outcome established in
Williams v Milotin, the English Court was supposed to determine the limitation period to the torts
of negligence or the torts of trespass. However, the English Court did not do that. The Court of
Appeal chose to determine the closeness of the relationship between the two different kinds of
torts. According to this case, the distinction of trespass and actions of the case is obsolete 30.
Therefore, in contrary to Williams v Milotin, it was opined in Letang v Cooper that causes of
action should be segmented in order to identify whether the dependents did it intentionally or
unintentionally and to identify whether the cause of action is negligence or not31. If the High
Court in the case Williams v Milotin had adopted a broader approach then these complications
could have been easily avoided.
It can be inferred that there are other jurisdictions present in Northern Territory, South
Australia and Queensland32. It can be inferred that the Limitation Act in other jurisdictions of
28 Christensen, Sharon, and William David Duncan. Professional liability and property
transactions. Federation Press, 2004.
29 Finch, Emily, Law Express (Pearson Education Limited, 2016)
30 Christensen, Sharon, and William David Duncan. Professional liability and property
transactions. Federation Press, 2004
31 Beever, Allan, "The Form Of Liability In The Torts Of Trespass" (2011) 40(4) Common
Law World Review
32 Kuver, Atul. "BREACH OF PRIVACY IN AUSTRALIA." (2010).

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Australia deal in a uniform manner when it comes to personal injury cases33. It can be referred
that the Limitation Act 1981 has a single limitation period in case of all tort cases which includes
personal damages and injuries due to trespassers and negligence. In addition to this, it can be also
highlighted that the original limitation period can be extended if the facts of the plaintiff’s case
though it varies from situation to situation34. It can be further opined that the position of South
Australia is similar to the above mentioned35. There is a three year period for personal injury
action though there is a six year limitation period for tort generally36. Like South Australia,
Queensland is fairly similar37. However, in case of Williams v Milotin [1957] 97 CLR 465, it has
been observed that plaintiff has relied on common negligence based on which he wanted to claim
the personal damages38.
33 Mullins, Gerard, and Susan Griffiths. "Intentional torts and the civil liability legislation."
Precedent (Sydney, NSW) 130 (2015): 15.
34 Stickley, Amanda. "High Court describes the" relevant approach" to vicarious liability with
proviso that the boundaries of the principle are not marked out." Australian Civil Liability 13.9
(2016): 128-131
35 Mullins, Gerard, and Susan Griffiths. "Intentional torts and the civil liability legislation."
Precedent (Sydney, NSW) 130 (2015): 15.
36 Pingree, Andrew. "Provocation as a Complete Defence to Trespass to the Person." Deakin L.
Rev. 15 (2010): 205
37 Handford, Peter. "Intentional Negligence: A Contradiction in Terms." Sydney L. Rev. 32
(2010): 29.
38 Stickley, Amanda. "The importance of intention." Australian Civil Liability 13.7 (2016): 104-
106.

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However, the major question is why should the action of the plaintiff will be limited to time
rather than the cause of action due to which it is being sued like happened in the case of Letang v
Cooper39. It can be also highlighted that the two causes of action are not same and they were not
same before as well. The main criteria for any action of negligence includes personal injuries
with any particular or special damage and also want of duty of care. It can be inferred that
trespass do not include none of the criterion. On the contrary, trespass includes direct violation of
protection of law around any particular person. Therefore, it can be further inferred that if there
is any absence of intention of harm or want of due care or violation in the course of traffic cannot
be considered as trespass. In addition to this, it can be also highlighted that trespass cannot be
considered as an actionable negligence.
Conclusion
The actual facts of the case must fulfil each and every course of action. However, it is not
necessary that only one course of action is vested in the plaintiff as per the provisions of
Limitations Act 1936, ss. 36 and 35. If the plaintiff has chosen something related to trespass or
assault, rather than negligence or any particular damage, the verdict could have been different.
The true meaning and effect of s.36 and s.35 has been established in the case as per period of
limitation and gist of action of negligence. Due to this reason, the Supreme Court is considered
to be right as the case was dismissed by the Court40. However, there will be questions whether
there will be limitations period applicable to the case of trespass or not.
39 Cooper, Letang V. "LETANG v. COOPER."
40 Stickley, Amanda. "High Court describes the" relevant approach" to vicarious liability with
proviso that the boundaries of the principle are not marked out." Australian Civil Liability 13.9
(2016): 128-131