Cadzow v Colson No. Scgrg-98-697 Judgment No. S132

[1999] SASC 132

CADZOW v COLSON
[1999] SASC 132

Magistrates Appeal

Debelle J

1. This is an appeal from the decision of a magistrate deciding liability for a motor vehicle accident on the Stuart Highway in the far north of the State.  The magistrate gave judgment for the plaintiff on his claim and dismissed the defendant’s counter-claim.  The amount of damages has been agreed.  The magistrate gave judgment for the plaintiff in the sum of $4,240 with costs to be taxed or agreed on the amount of the counter-claim which was $12,258.33.  The defendant appeals against that decision.  I will refer to the parties as “plaintiff” and “defendant”.

2. The plaintiff was driving his Toyota Land Cruiser south along the Stuart Highway.  The Toyota was towing a trailer which contained two motor cycles which were placed upright and beside one another.  He was being followed by his son who was also driving a Toyota Land Cruiser.  A witness, Mr Larkins, was a passenger in the son’s vehicle.  Both the plaintiff and his son intended to turn right into a road called Wantabilla Crossing.  Wantabilla Crossing forms a T-junction with the Stuart Highway.

3. The defendant’s Ford motor car was also travelling south.  It was behind the vehicles driven by the plaintiff and his son and was travelling faster than both.  At this point the Stuart Highway is straight and flat for a distance of about 10 km.  The defendant’s Ford began to overtake the two Toyota vehicles.  The plaintiff turned his Toyota right to go into Wantabilla Crossing at the same time as the defendant’s vehicle was overtaking it.  A collision occurred.  Both vehicles were damaged.

4. The magistrate accepted the defendant’s evidence that she was driving at a speed of about 110 km/hour before the collision.  He also found that both Toyota vehicles were travelling at about 80 to 90 km/hour and that the defendant began to overtake the Toyota at a distance of at least 80 metres behind it. 

5. A central issue at the trial was whether the plaintiff had indicated his intention to turn right into Wantabilla Crossing and whether the right hand side traffic indicator on his Toyota was working.  The plaintiff said that he had put on his traffic indicator and that he had also extended his right arm to indicate his intention to turn right.  His son said that he saw the traffic indicator working.  His son also gave evidence that he too had  turned on his traffic indicator and had extended his right arm to show his intention to turn right.  The defendant and her passenger both gave evidence that the driver of neither vehicle gave any warning of an intention to turn right and that the plaintiff’s vehicle had suddenly deviated across the path of the defendant’s vehicle. 

6. Police officers came to the scene of the accident.  They tested the plaintiff’s traffic indicators.  The indicators on the right hand side of the vehicle were not working.  When questioned by the police officers, the plaintiff said “I didn’t realise it was broke”.  There was no damage to the traffic indicator caused by the accident or any damage to the vehicle close to it.  In addition, the rear lights on the trailer were not operating.  There was no suggestion that they had been damaged in the accident.  After the accident, the plaintiff’s son had said to the defendant that both he and his father “had our lights on”, meaning the traffic indicators of both vehicles were working.

7. The magistrate gave ex tempore reasons for judgment.  He said that he was impressed with the manner in which the plaintiff had given his evidence.  He accepted as truthful the evidence of the plaintiff and, as well, the evidence of his son and Mr Larkins, who gave evidence for the plaintiff.  He accepted the evidence of the plaintiff and his witnesses where it conflicted with that of the defendant and her passenger.

8. The magistrate’s reasons for finding that the accident had been caused by the defendant’s negligence were:

• That the defendant’s manoeuvre in overtaking when she had not checked whether it was safe to overtake two vehicles was extremely negligent, particularly as she knew that both vehicles were station vehicles which, the magistrate concluded, were likely to turn off the road at any time. 

• That, as the defendant was overtaking two vehicles, it was possible that she and her passenger did not see the indicator on the plaintiff’s vehicle.

• That the plaintiff’s son and his passenger, Mr Larkins, had seen the indicator on the plaintiff’s vehicle and the plaintiff said that he had activated it.

• That it was not possible to exclude as a possibility that the heavy impact of the collision had caused the plaintiff’s indicator to cease to function.

• That the plaintiff’s Toyota had slowed to a speed of about 10 km/hour in order to make the right hand turn and the defendant should have noticed the vehicle slowing and seen the brake light when he slowed.

The magistrate found that the defendant was wholly responsible for the collision. 

1. The defendant challenges each of these findings of fact.  Dr Salu, who appeared for the defendant, submitted that the magistrate should have found in the defendant’s favour on her counterclaim and dismissed the plaintiff’s claim.  Alternatively, he submitted that the magistrate ought to have found the plaintiff guilty of contributory negligence and apportioned liability.

2. The difficulty for the defendant on this appeal is the fact that the magistrate has accepted the evidence of the plaintiff and his son.  The effect of their evidence is that the traffic indicators on both vehicles were operating and that, in addition, each had extended his right arm to indicate an intention to turn right.  The plaintiff’s son said that he had done so before the defendant passed his vehicle.  In her evidence the defendant said that she had a clear view of the rear of both of the Toyotas.  The defendant’s evidence that she did not see any indication of an intention to turn right means either that the plaintiff and his son did not indicate their intention or that the defendant failed to see their actions.  The magistrate has accepted that they did indicate their intention with a consequent finding that the defendant had failed to keep a proper lookout in not seeing their indication of an intention to turn right.

3. Dr Salu criticised the finding that the traffic indicator on the plaintiff’s vehicle was working and the magistrate’s dismissal of the police evidence that, when tested, it was not working.  There is a good deal of force in his criticism, particularly since there was no damage to either the tail light or any part of the Toyota near the tail light.  However, regard must also be had to the fact that the plaintiff’s son had indicated his intention to turn right and that had not been seen by the defendant.  In the result, whatever fault might exist in the magistrate’s reasoning, it does not affect the overall result.

4. Dr Salu also criticised the magistrate’s reasoning because it did not address the failure of the plaintiff to see the defendant’s vehicle at some time earlier than just before impact.  As this was an open and flat stretch of road, he said, the plaintiff would have had ample opportunity to have seen the defendant’s Ford approaching.  He submitted that the failure to keep a proper lookout to the rear was a contributory cause of the collision. The plaintiff’s evidence was that he had looked in his rear vision mirror before deciding to turn right.  He did not then see the defendant’s Ford.  Just as he was commencing to turn right he saw it come out from behind his son’s Toyota.  He said that it had “burst” out from behind his son’s Toyota.  It is clear from the magistrate’s reasons that the cause of this collision was the failure of the defendant to keep a proper lookout.  That conclusion was open to him.  The driver of an overtaking vehicle must keep a sharp lookout to ensure that it is safe to overtake.  Had the defendant kept a proper lookout, she would have seen the plaintiff and his son indicate their intention to turn right. She would not have begun to overtake both vehicles and the accident would not have occurred.  I do not think there is sufficient basis to interfere with the magistrate’s findings or to find the plaintiff guilty of contributory negligence.  Furthermore, the action was conducted on the footing that either one party or the other was liable for the collision. There was no plea that either had been guilty of contributory negligence. Furthermore, the notice of appeal does not assert that the magistrate should have made a finding of contributory negligence. The defendant must be bound by the manner in which this action has been prosecuted on her behalf. 

5. Dr Salu submitted that the magistrate had not addressed the question that the lights on the trailer were not operating at all.  There was no suggestion that they had been operating before the accident.  He submitted that the magistrate had also failed to address the question whether the trailer with the motor cycles carried on it obscured the brake light and the traffic indicators at the rear of the plaintiff’s Toyota.  The criticism is not justified.  The question whether the absence of lights on the trailer and whether the trailer obscured the traffic indicator on the Toyota were neither pleaded nor pursued in evidence.  The defendant’s case was that she had a clear view of the rear of both Toyotas and did not see the traffic indicators of either flashing.  She did not in any sense hint or suggest that her view of the plaintiff’s indicators was obscured by the trailer or the motor cycles being carried on it.  In addition, in answer to one question in cross-examination, the defendant’s son had said that neither the trailer nor the motor cycles carried by the trailer obscured the lights.  His answer was in no respect challenged.  The plaintiff had given evidence as to the height of the trailer but it did not clearly indicate whether the trailer obscured the light.  The issue was not examined in any detail in his cross-examination.  The evidence does not, therefore, suggest that the trailer obscured the traffic indicator and other lights at the rear of the Toyota.  In this respect also the defendant is bound by the conduct of the case on her behalf.  It is now too late to raise the issue, particularly given that so far as it was pursued in evidence, the evidence points to a contrary conclusion.

6. Dr Salu also criticised the magistrate’s finding that the defendant’s manoeuvre in overtaking was negligent because she knew the vehicles were station vehicles.  His criticism is entirely justified.  At this point in the Stuart Highway the road is straight and flat for a long distance. There was no suggestion of any oncoming vehicle.  The only vehicles then on the road were the vehicles being driven by the plaintiff, his son and the defendant.  They were all travelling in the same direction.  The defendant executed an ordinary and common manoeuvre when overtaking the two vehicles travelling ahead of her.   The fact that she believed that the two vehicles were station vehicles does not require her to expect that they might turn off at any time.  She, in common with any other road user, would be entitled to expect that, if the driver of either vehicle intended to turn off the road, they would give adequate warning of their intention.  But I do not think that, standing alone as it does, this is a reason for interfering with the magistrate’s decision, particularly as the significant finding of fact concerns the issue whether the plaintiff indicated his intention to turn right.

7. For all of these reasons, the appeal is dismissed.