Saturday, August 29, 2015

Williams v Milotin

case-note legal torts

[1957] HCA 83; (1953) 97 CLR 465

This is the authority of Australian's position on fault in trespass.

"At that time the present action might have been framed as an action of trespass. For it seems that the facts which the plaintiff...intends to allege are that he was immediately or directly hit by the motor car driven by the defendant as a result of the negligence of the defendant himself. There is no suggestion that the defendant intended to strike him. If that had been the allegation the action could have been brought in trespass and not otherwise."

The present of intention to strike the plaintiff bars an action on the case.

"But as only the negligence of the defendant is relied upon, while the cause of action might have been laid as trespass to the person, the action might also have been brought as an action on the case to recover special or particular damage caused by the defendant's negligence"

This is where English and Australian courts have diverged. In Australia, if (1) direct (2) injury or harm resulted from defendant's (3) negligence, then an action can be brought as either trespass or an action on case or both. In UK, these two regimes do not overlap.

"Had the damage been caused indirectly or mediately by the defendant or by his servant...the action must have been brought as an action on the case and not otherwise..."

An action in trespass requires directness.