49 The collision occurred in fine weather and in daylight. Both drivers had driven over this road many times. The road was a dirt road in heavily timbered mountain country, very steep in sections with a multitude of bends and curves. Photographs in evidence illustrate the type of road, although it was not established whether they depict the site of the collision. The photographs generally show a road consisting of one pair of wheel tracks which would carry traffic in both directions, with room beside the wheel tracks for vehicles to pass with care.
50 In her judgment the Trial Judge gave a fairly long narration of the effect of the evidence, particularly the evidence of Mr Kearney and Mr Fuller relating to the events and the collision. This narration takes the form of stating the effect of the evidence, without finding facts or indicating whether the evidence or passages in it were accepted. The conclusory passages in which it might be understood that facts are found are relatively short.
51 Mr Kearney's evidence, as narrated by her Honour, was to the effect that immediately prior to the accident he was riding up a fairly steep slope in third gear at approximately 40 km per hour. He said that road conditions, including at some places quartz rocks on the road, made it necessary for him to travel the road with caution and limited his speed. He said it would have been impossible to ride a motorcycle at 60 km per hour on the part of the road where the collision happened. He travelled around a left-hand bend, and was to the left of the centre of the road; he saw the Toyota vehicle driven by Mr Fuller coming around the next right hand bend at a very fast speed when he was about 40 m away from it; he braked, brought the motorcycle upright, dropped back into second gear and tried to move to the left-hand side of the road; the Toyota headed to the left-hand side of the road, meaning Mr Kearney's left-hand side of the road; Mr Kearney turned his motorcycle to a 45° angle towards the left, the front wheel was at the edge of the road and he was unable to move any further out of the path of the Toyota, and he was struck by the bull bar. As the ground on his left side of the road dropped away steeply his options were to go over the side or to strike the bull bar on the Toyota. In Mr Kearney's account, the Toyota was still moving at the point of collision and Mr Kearney was dragged 4 or 5 metres downhill until the Toyota stopped; and Mr Kearney was then thrown further. Mr Kearney said that at the time of impact the Toyota was well over to Mr Kearney's left from the centre of the road, so that there was only 1 to 1 ½ feet between the offside wheel of the Toyota and the point where the road dropped away; but that there was 1 ½ to 2 m of space on the other side, that is the Toyota's near side.
52 Mr Kearney described the action of the Toyota as drifting, and said that when its brakes were applied it drifted even more to Mr Kearney's left, onto the side of the road, and there was nowhere to the side of the vehicle where Mr Kearney could go. Mr Kearney's evidence clearly depicted the Toyota as having been in the centre of the road when the brakes were applied, and then having drifted further to Mr Kearney's left. Her Honour reviewed and stated the effect of all significant aspects of Mr Kearney's cross-examination, and of statements made by him which were claimed to have been inconsistent with his evidence.
53 The Trial Judge's review of Mr Fuller's evidence showed to these effects. Mr Fuller was driving the Toyota utility, which was in good condition, downhill in second gear; the road surface was rutted and loose. He braked when arriving at a bend which was reasonably sharp; he approached the bend at about 25 km per hour but slowed to 20 km per hour. As he came out of the bend he saw a motorcycle about 30 m away. The Toyota was in the centre of what was effectively a one-lane track. He could not say where the motorcycle was on the road. The motorcycle was travelling faster than the Toyota. Mr Fuller braked immediately, skidded about 2 or 3 m and stopped within about one or two seconds prior to impact. When the Toyota stopped it was in the centre of the road with maybe one tyre to his left of the wheel tracks on the road. He said that the motorcycle came towards the Toyota skidding straight at it, turning sideways, and it then struck the bull bar between the driver's side and the centre of the Toyota. He said that there were 2 m of road space between the right side of his vehicle and the edge of the road, and there was 1.5 m of space to his left. The Trial Judge stated the effect of significant cross-examination of Mr Fuller, which included an admission that he had not been expecting to encounter another vehicle, denial that he had been driving too fast and denial that the Toyota was on the wrong side of the road.
54 The Trial Judge also reviewed the evidence of Mr Child, a passenger in the front seat of Mr Fuller's vehicle, who said that just prior to the impact the Toyota was very close to the centre of the track and that its wheels would be in the wheel tracks.
55 The Trial Judge also reviewed the evidence of Police Constable Brown, who attended at what was thought to be the scene of the collision, in the presence of Mr Fuller but after Mr Kearney had been taken to hospital; when Constable Brown attended it was totally dark and he made no useful observations; except that at the point of impact the maximum road width was a little over 2 m, not wide enough for two cars to pass comfortably; and that the vegetation was very thick. He observed skid marks but was unable to form any opinion about what they meant, or whether they were related to the collision. The Trial Judge also reviewed expert evidence tendered by both parties which the Trial Judge treated as ultimately inconclusive.
56 After a lengthy review of the evidence the Trial Judge expressed her findings and decision on liability in these terms (Red 66-69):
Analysing the evidence that I have summarised, I make the following findings. It is not possible to rely upon the photographs. They were challenged by Mr Kearney. Both the defendant and Mr Child were uncertain as to whether they were in fact photographs of the site of the accident. Constable Brown who took measurements gave the width of the road as considerably less than that propounded by the defendant. As to Mr Kearney's initial statements that the accident was the result of road conditions, they are in some respects correct. The road conditions were such that ordinary everyday activity of two vehicles travelling in opposite directions meeting and passing could not be achieved at the site of this accident unless each driver took action to make way for the other. Ultimately however, Mr Kearney's views on responsibility for this accident are not determinative of that issue.
I have formed the opinion that Mr Kearney has probably undertaken a process of reconstruction in which he has placed the Toyota further to Mr Kearney's left side of the road than was the fact. However, it is also apparent from the evidence of the defendant and Mr Child that the Toyota was not as far to their left hand side of the road as they originally stated and that was certainly not in the position shown in photographs 2.17 and 2.18 as stated in paragraph 3.3 of Mr Johnston's report. Their evidence was that the Toyota was in or close to the centre of the road. The road width according to Constable Brown was just over two metres wide with no space or road shoulder to the side of it. This is contrary to the evidence of the defendant and Mr Child that there was an area two metres wide to the right of the Toyota.
Further there is evidence of the defendant that his brakes did in fact lock and that the Toyota skidded to a halt immediately prior to the impact. Thus I must conclude that at the time of the impact the Toyota was in or close to the centre of the road. The brakes of the Toyota had locked and the Toyota had skidded immediately prior to impact. This indicates that in all probability he was not in total control of the vehicle. The photographs in evidence do not depict the road at the site on the evidence. The photographs in evidence do not depict the position of the Toyota at the time of impact. The width of the road at the site of the accident was little more than two metres with little space to each side, thus if the two vehicles were to pass each other it was necessary that the defendant move the Toyota as close as possible to his left hand side of the road. This he did not do, despite his clear vision of the approaching motor cycle. In all probability he failed to do this because the brakes were locked and the vehicle was skidding. In failing to make way for Mr Kearney and his motor cycle, the defendant was in breach of his duty of care.
Mr Kearney on approach appears to have proceeded on the assumption that the defendant would move to his left hand side of the road to allow him to pass. He did not sufficiently slow down or stop to allow for a more measured movement around the Toyota in the event that it remained as it did in the centre of the road. He was then left only with the choice of making a sharp move to the left at the same time as braking to slow his speed. On a dirt road the consequences were predictable. In this respect he was in breach of his duty of care and he contributed to the damage which he suffered in this motor vehicle accident.
On this basis of my analysis of the evidence, I have apportioned responsibility equally between Mr Kearney and the defendant.
57 The Trial Judge's findings are not highly concrete with respect to matters of detail, and in my view this was appropriate in view of the nature of the information available. Sources of information which are sometimes quite useful in basing conclusions about motor accidents were not reliable here. The Trial Judge did not treat the evidence about observation of skid marks as a basis for conclusions, although there were a number of references to skid marks in the oral evidence; but Constable Brown was not able to make a useful observation. It was not possible to rely on the photographs in her Honour's view; reasonably enough, for reasons which she gave. Constable Brown's evidence has the advantages of his lack of involvement and his presumed objectivity, but the disadvantages of his having made his observations in the night time, in the absence of Mr Kearney and using torches and headlights and the difficulty which he encountered of interpreting marks on the road. However he did give measurements, which must have been based on what Mr Fuller told him was the site of the collision, and the Trial Judge took a reasonable course in acting on his evidence about the width of the road - that the width was just over 2 m wide. This accords, in a way, with Mr Kearney's evidence to the effect that the position of the Toyota left him nowhere to go but to collide with the Toyota. Her Honour's finding that two vehicles driving in opposite directions could not pass unless each driver took action to make way for the other was plainly correct, and was the basis of her Honour's analysis in which there was negligence on the part of each driver.
58 Although the Trial Judge referred to the evidence of Mr Fuller that the Toyota skidded to a halt immediately prior to the impact, she did not say that she accepted this and made no distinct finding about whether or not the Toyota was in motion at the time of collision. In the Trial Judge's analysis and in the respects in which negligence was found, it appears not to be of real importance whether the Toyota was or was not still in motion at the point of collision. The important matter is that if the vehicles were to pass there was a need for each of them to take action to make way for the other, and neither achieved this. There can have been little room for Mr Fuller to move his Toyota further to the left than he did, but there was some room; little as it was yet his vehicle after braking hard and skidding was still in the centre of the road at the point of collision. In the same way, there was little room for Mr Kearney to pass further to the left, but there was some room. The effect of the Trial Judge's findings was that neither did enough in this situation, difficult as it was, to avoid a collision by making space for the vehicles to pass.
59 It is notable that the Trial Judge's disposition does not attribute excessive speed to either driver. Each driver was affected by conditions special to him. No evidence suggests that Mr Fuller faced Mr Kearney's difficulty of a drop off on his near side of the road. It is probable that, when observation became possible, Mr Kearney was travelling at a higher speed than Mr Fuller. The road consisted of little more than one pair of wheel tracks, passing another vehicle required careful negotiation by both drivers, and the attribution by her Honour of equal responsibility to both appears to me to be a reasonable and correct determination.
60 Counsel for the appellant made observations about a number of matters with which it was contended that the Trial Judge had not dealt adequately. These included the point where the collision occurred. In the circumstances and in the nature of the evidence, precision was not available, and I do not see its absence as of any real importance. It was contended that the Trial Judge had not adequately considered Mr Fuller's case, in which it contended that he had moved to the left when he braked hard; that he then locked up and skidded. Although the Trial Judge did not in her summary of evidence refer to a written statement which Mr Fuller made to Constable Brown, which was generally confirmatory of his oral evidence, I do not think that the Trial Judge showed any lack of advertence to any significant part of Mr Fuller's narration. Several other aspects of the collision, which it was said that the Trial Judge had not dealt with, appear to me not to have been of real importance, in relation to the Trial Judge's view of the respect in which there was negligence. The sources in evidence of precision in fact-finding were few.
61 In my opinion Mr Fuller's challenges to the Trial Judge's disposition on liability do not succeed, and the Court of Appeal should order:
Appeal dismissed with costs.