On behalf of Barbara MacDonald:

It is not a theoretical account of what counts as a cause of action but Duncan may find some assistance in this passage from the High Court of Australia in Williams v Milotin (1957) 97 CLR 465 at 473, again in the context of a limitation statute and the differing periods for trespass and negligence actions:

 

"....the problem is reduced to the simple position that on the same set of facts two causes of action arose to which different periods of limitation were respectively affixed. In saying that two causes of action arose no more is meant than that two traditional categories continue to exist in the contemplation of the material provisions of s. 35 (c) and (k) and s. 36 and that there is no difficulty in distinguishing between the categories either notionally or historically.

 

15. Plainly enough the plaintiff relies on the category which we commonly call negligence but which the statute looks at as an action of the kind which once was brought for the recovery of special or particular damage caused by conduct on the part of the defendant making it actionable, in this instance negligence. Why should the plaintiff's action be limited by any other period of time than that appropriate to the cause of action on which he sues? The two causes of action are not the same now and they never were. When you speak of a cause of action you mean the essential ingredients in the title to the right which it is proposed to enforce. The essential ingredients in an action of negligence for personal injuries include the special or particular damage - it is the gist of the action - and the want of due care. Trespass to the person includes neither. But it does include direct violation of the protection which the law throws round the person. .... It happens in this case that the actual facts will or may fulfil the requirements of each cause of action."

 

Barbara

-- 
Jason Neyers
Professor of Law
Faculty of Law
Western University
N6A 3K7
(519) 661-2111 x. 88435