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

The matter of Cadzow v Colson is an appeal against a decision of a magistrate who had found the plaintiff, Cadzow, liable for a motor vehicle accident on the Stuart Highway in South Australia. The defendant, Colson, had appealed against the magistrate's decision to give judgment for the plaintiff and to dismiss her counter-claim. The magistrate found that the accident was caused by the defendant's negligent overtaking of the plaintiff's vehicle. The plaintiff's traffic indicator was working, and he had indicated his intention to turn right into Wantabilla Crossing. The defendant had failed to keep a proper lookout and did not see the plaintiff's indicator or the plaintiff and his son extending their right arms to indicate their intention to turn right. The magistrate found that the defendant was wholly responsible for the collision.

The main legal issue in this case was whether the magistrate was correct in finding that the defendant was negligent in overtaking the plaintiff's vehicle and whether the plaintiff had indicated his intention to turn right. The court had to consider the evidence given by the parties and their witnesses and determine whether the magistrate's findings were open to him or whether there was sufficient basis to interfere with the magistrate's findings. The court also had to consider whether the plaintiff was guilty of contributory negligence for failing to see the defendant's vehicle at some time earlier than just before impact.

The court found that the magistrate's decision was correct, and the appeal was dismissed. The court accepted the evidence of the plaintiff and his son that the traffic indicators on both vehicles were working and that they had indicated their intention to turn right. The court found that the defendant had failed to keep a proper lookout and did not see the plaintiff's indicator or the plaintiff and his son extending their right arms to indicate their intention to turn right. The court also found that the defendant's overtaking manoeuvre was not negligent, as the road was straight and flat for a long distance, and there was no suggestion of any oncoming vehicle. The court concluded that the significant finding of fact concerned the issue whether the plaintiff had indicated his intention to turn right.

The court did not find it necessary to consider the plaintiff's failure to see the defendant's vehicle at some time earlier than just before impact, as the action was conducted on the footing that either one party or the other was liable for the collision. Furthermore, the notice of appeal did not assert that the magistrate should have made a finding of contributory negligence. The defendant was bound by the manner in which this action had been prosecuted on her behalf. The court also found that the defendant's criticism of the magistrate's finding that the traffic indicator on the plaintiff's vehicle was working was not justified, as the evidence did not suggest that the trailer obscured the traffic indicator and other lights at the rear of the Toyota. The court found that the defendant's criticism that the magistrate had not addressed the question that the lights on the trailer were not operating at all was also not justified, as this issue was neither pleaded nor pursued in evidence.