THE SUPREME COURT
Keane C.J.,                                                                                                         140/02
Hardiman J.
Fennelly J.

Between:
EUGENE LENNON
                                                     Plaintiff/Respondent
and
PATRICK REILLY 
and
BUS ÉIREAN/IRISH BUS
                                                      Defendants/Appellants

JUDGMENT of Mr. Justice Hardiman delivered on the  25th day of November, 2003 [Nem Diss].

	This is the defendants appeal from the order of the High Court (Budd J.) made the 23rd day of October, 2001.  By this order the Court found that both the plaintiff and the defendant were negligent in respect of an accident in which their respective vehicles were involved;   that the degree of their respective fault was 50% each and that the value of the plaintiff’s claim, assuming full liability, was £710,145.00.  Having regard to the degrees of fault the plaintiff was awarded £355,072.50.   From the transcript and other records of the hearing it appears that the case first came into the list on the 11th May, 2001 and was heard on the 15th, 16th and 17th May, 2001.   On the 15th May the learned trial judge decided to deal with the liability issue first.  He gave judgment on that issue on the 17th May leading to the result stated above.  The issue of damages was dealt with at hearings on four further days and was the subject of a further judgment delivered on the 23rd October, 2001. 

	I intend to deal first with the issue of liability.

Factual background.
	On the 19th October, 1995 the plaintiff was driving his Opel Astra motor car on a small country road between Nobber and Drumconrath, Co. Meath. He had left home at about 7.40am in order to give his 17 year old daughter a lift to work.  He had travelled some eight or nine miles and made one stop when he came to a place where there is a signpost on the right hand side of the road pointing towards the opening of a small road to Lough Bracken on the other side of the road.  This is in fact the widest part of the road:  it is 17foot 6 inches from verge to verge at or near the point of impact.  At the time, there was a continuous white line along the centre of the road. The plaintiff’s carriageway was 9 foot 3 inches wide and the defendant’s 8 foot 3 inches.  At or near this point the plaintiff’s vehicle was involved in a collision with a school bus driven by the first-named defendant and owned by the second-named defendant.  The plaintiff’s car was about 13 feet long and 5 foot 6 inches wide.  The defendant’s bus was 8 foot 2 inches wide and about 40 feet long.   Both drivers ascended an incline as they approached the junction with a small road that goes down to the lake.  This area was the summit of the incline.  It was also the apex of a sharp bend described in evidence as “right angled” and “very severe”.  Accordingly, each driver’s view of traffic coming in the opposite direction was restricted.  

	The accident was attended by a member of the Garda Síochána who drew a sketch of the scene.  From this and from the evidence at the trial it emerged that the guard found the bus on the left hand side of the road facing towards Nobber, which had been its direction of travel, on the Drumconrath side of the junction.  This bus was “well up on the grass margin”;  the front right hand side of the bus was 7 feet from the white centre line on the road and the rear of the bus was 2 feet from the line.  The entire of the bus was on its correct side of the road.  There was an Opel Astra, the plaintiff’s car, which was “crossways on the road with the front of it stuck into the side of the bus”.   There was a skid mark some 
13 ½ feet long from the right front wheel of the bus towards the rear.  There were no other skid marks.  From glass and mud on the road the garda identified the point of impact as being 3 feet from the white line on the bus’s correct side, more or less along the line of the skid mark.  The guard’s identification of the point of impact was accepted by both sides both at the trial on the hearing of this appeal.  

	It therefore appears that the car collided with the bus on the car’s incorrect side of the road at a moment when the bus was travelling towards the margin of the road on its own side.

	There was no serious dispute as to speed:   both vehicles were travelling about 25 miles per hour.  The weather conditions were dry, but the road was slightly damp and, as described by the plaintiff, greasy.  

The respective accounts of the accident.
	The plaintiff said that he was at the crown of the bend when he saw the bus.  It was about 50 or 60 yards away.  He said the bus was “coming around the corner on my side of the road, it was out maybe 4 foot on my side of the road”.  He said he had no option but to brake because he thought there was going to be a head on collision.  When he braked, he said, his car “must have skidded”.  In cross-examination he said the car “must have skidded across the road”.   This, however, was inference or deduction on his part because “when I braked I don’t know what happened after that”.

	The plaintiff was generally supported by the evidence of his daughter, who was then 17.  She said as they were coming around the bend she could see the bus coming around the opposite side of the bend “and it was coming out across our side of the road”.  She estimated that 2 or 3 feet of the bus was on its incorrect side of the road.  She said that, having seen the bus “automatically I jumped straight down from the passenger seat underneath the dashboard”.  She heard, but did not see, the collision between the vehicles.  

	The first defendant, the bus driver, said that as he approached the bend he saw the car coming around the corner.  It was on its own side of the road as far as he could see but he said he knew immediately that the car was not going to make it past him.   He swung his bus towards the grass margin and he “stood on the brakes”.  The car, which was on the bend, came straight across into him.  It struck the bus behind its front wheel.  The seat above the wheel was pushed upwards and its occupant thrown out of the seat.  He said his bus was practically stopped when the collision occurred; he felt it could have slid forward another 2 feet. After he opened the door, the bushes at the side of the road were sticking out into the door opening. 

	The plaintiff’s attention was drawn to an area of cracked surfacing and dipping in the roadway, as shown in the photograph taken some five weeks after the accident. He said that he had not seen it on the roadway and the first time his attention had been called to it was in the course of a district court hearing about the accident.   

	The defendant denied that he was at any stage partially on his incorrect side of the road, as alleged by the plaintiff.   He said that if he had been in the position alleged the back of his bus would have swung around blocking the road when he headed for the verge on his own side.

	In prolonged cross-examination the defendant repeatedly stated that he had seen no pothole on the road on the morning of the accident.  No-one had mentioned a pothole to him until the District Court hearing about nine months after the accident.  The defendant was put under huge pressure to concede that there was a pothole on the road that day, but declined to do so.  There was also put to the defendant a theory expounded by an engineering consultant on behalf of the plaintiff.  This was to the effect that by extrapolation from the direction of the skid mark, the back of the bus must have been between 1 and 2 feet on its incorrect side of the road at the time he saw the car.  Again, the defendant was put under severe pressure on this point, which he courteously but emphatically rejected.  He stated that he had been at all times driving on his correct side of the road with his wheel almost against the margin due to the narrowness of the road.  He also expressed the view that if he had been further out on the road the suddenness and angle of the movement necessary to end with his left front “stuck in the ditch” would have moved the right rear of the bus so as to block the other carriageway, by reason of the length of the bus and the tail swing.  He emphatically stated that the other carriageway was never blocked and this in fact was accepted by the plaintiff.

Reconstruction of the accident.
	Since the impact occurred on the defendant’s side of the road it was clearly incumbent on the plaintiff to produce some positive explanation of how an accident in that location was consistent with negligence on the part of the defendant.  He sought to do this by calling a Mr. Stephen Mooney, Consultant Forensic Engineer, who advanced a theory or reconstruction of the accident.  Mr. Mooney’s theory was this.  Once wheels are locked so as to create a skid mark the vehicle will travel in a straight line.  He considered the skid mark, some 13 feet 7 inches long.  He then produced a line backwards from the skid mark but in the same line, so as to allow for what he said was a .75 to 1 second reaction time.  Based on that, said Mr. Mooney “The bus driver’s reaction would be where the dotted line is to the right of the centre line in the direction the bus was travelling”.   By this process, he said, one could establish that he front wheel of the bus which created the skid would have been between 1 and 2 feet on its incorrect side of the centre line when the driver reacted to the presence of the car by applying his brakes.  At that stage, he said in cross-examination, the bus would have been 28 yards back from the point of impact.

	In further cross-examination Mr. Mooney agreed that, on his maximum measurements, there would have been an 8ft 3 inch passage available to the plaintiff’s car which it should have been able to go through having regard to its modest speed.  He said his calculation suggested that the bus was travelling about 13 ½ miles an hour at the start of the skid mark. He agreed that at the point the skid mark started the right front wheel of the bus would have been 4 feet on its correct side of the road. The bus was at that stage angled to the left.  Mr. Mooney agreed this suggested that the bus driver had sought to some degree to leave the carriageway and mount the verge.  He agreed that this indicated an emergency action on the bus driver’s part but denied there was any violent steering action on the part of the driver.  He agreed that Mr. Lennon’s description of the bus as being 3 or 4 feet out on the roadway over the centre line could not be correct on his calculations.  But he said that Mr. Lennon’s perception might have been that the bus was much further over, by reason of his angle of vision.  

	All of Mr. Mooney’s evidence was postulated on what counsel for the plaintiff called “the hypothetical basis that the bus had travelled in a straight line for some distance”.

	Mr. James Watson, Chartered Engineer, commented on Mr. Mooney’s theory of reconstruction on behalf of the defendant.  He said:-
“I can’t look at Mr. Mooney’s evidence in isolation because since then I have heard several of the passengers and the driver say that the bus veered to the left.  The driver particularly said that he reared to the left and braked and skidded 13 feet.  The only physical evidence which we can take as fact for the purpose of interpretation from the Garda sketch is a skid mark.  Mr. Mooney was correct when he said that a vehicle skids in a straight line.  The driver said prior to that skid he had veered to the left which means that his direction of travel prior to that was some other direction of travel.  He was facing in a different line.  Mr. Mooney in his analysis has hypothesised that the direction of travel was constant and he extrapolated backwards… He is correct in my view in so far as the skid mark relates, the rest is hypothesis which has since been altered by the evidence Your Lordship heard”.

	The passengers referred to were three passengers from the school bus who were seated on the right hand side.  They gave evidence generally consistent with the first-named defendants.  All testified to the bus veering to the left.  One of them, seated not far behind the driver, stated that he saw the car coming around the bend and formed the view that “it wasn’t going to take the bend, it was going too fast… it was going too fast and immediately the bus driver must have seen him because he swerved in. He went into the left hand side on to the grass verge”.  While this witness reached the same conclusion as the bus driver, the latter did not attribute his apprehension about the car to its speed, but to the angle at which it was approaching.

Negligence of Plaintiff.
	Both drivers were under an obligation to drive with reasonable care and specifically (as the Road Traffic Regulations express it) to drive at such a speed as to be able to stop within the distance the driver can see to be clear.   The plaintiff did not manage this.  He braked, lost control of his vehicle, and struck the oncoming bus on his incorrect side of the road.  It thus appears to me that the plaintiff must bear responsibility for the accident.  This is indeed now accepted by the plaintiff who has not appealed the learned trial judge’s finding.  In the particular circumstances of this accident – a narrow country road inclining towards a blind bend – there was a manifest need for care due to the possible presence of animals or wide agricultural vehicles or machinery.  The plaintiff on his own account saw the defendant’s vehicle some 50 or 60 yards away, at a time when he was travelling at a speed of less than 30 feet per second.   Taking the reaction time cited in evidence by the engineers, he manifestly had the time and opportunity to stop on his own carriageway. He not merely failed to stop but failed to control his direction of travel so that he left his correct carriageway and struck the bus on its correct side.  

	Accordingly, the question for resolution here is whether the plaintiff can establish that the defendant bears any responsibility for the accident.  The plaintiff says that the defendant, by travelling partly on his incorrect side of the road, created an emergency which caused him to brake and to lose control of his vehicle when it skidded.  

High Court findings.
	In finding the defendant 50% responsible for the accident the learned trial judge has found that both the plaintiff and the first-named defendant had given evidence honestly and credibly.  He held “That the bus was a bit too far out on the road and while of course it did swerve and come in so that it was in the front 7 feet from the white line and at the back 2 feet from the white line, I think that it was out on the road… I think that in coming to that bend on the morning when the road was greasy that Mr. Lennon wasn’t driving with quite as much care as he should and that when he saw the bus out on in front of him – the bus I don’t believe was that far out… I think it would probably have been a couple of feet or perhaps a bit more out across and with the sharpness of the bend that gave the appearance that the bus was right out and then the plaintiff hit the brake on the greasy surface and that was what caused him to skid and skid I believe he did…  In relation to the driving of Mr. Lennon, I think the fact that he came around the bend and I think he probably did come around a bit at a wrong angle.  Also I think he misread the situation ahead of him and applied the brakes on a greasy surface and that he was culpable in that respect”.   The learned trial judge went on to make the apportionment mentioned.  He did not state whether this reflected the actual degree of fault of the parties, or was made pursuant to s.34(1)(a) of the Civil Liability Act 1961, in default of a more precise finding, on the basis that it is not possible to establish different degrees of fault.   From the absence of a reference to the statutory default provision, I infer that it was probably not applied.

	In reaching that conclusion the learned trial judge said on several occasions that he thought it best to rely on the evidence which he regarded as objective.  He summarised the engineers’ evidence but did not express any conclusion on it.  In commenting on the evidence of Mr. Lennon and his daughter “I rely particularly on the evidence of Mr. Lennon and his daughter Denise as to where they believed the bus was on the road although I don’t think the bus was quite as far across as maybe they thought”.  He did not comment on the concession by the plaintiff’s engineer in cross-examination that, on his calculations, the evidence of Mr. Lennon as to the position of the bus could not be correct.  

	The judgment of the learned trial judge is not in the form suggested in the judgment of McCarthy J. in Hay v. O’Grady [1992] 1 IR 210.  At page 218 of the report he emphasised:-
“… the importance of a clear statement… by the trial judge of his findings of primary fact, the inference is to be drawn, and the conclusion that follows”.

	The important evidence is recited in the judgment but on important parts of it no conclusion is expressed:   I speak in particular of the engineering evidence.  Since the plaintiff had no recollection of what happened after he braked, it is clear that his entire case was based on inference and that circumstance further underlines the importance on a clear statement of the findings of primary fact and the particular inferences drawn from them.  The complexities of the case as presented were such that three days were occupied in the exploration of the liability aspect only of a simple traffic accident.  In those circumstances it is regrettable that the learned trial judge was not assisted, at the conclusion of the evidence, by brief submissions from the parties.  The Court has deprecated a similar omission in a number of previous cases.  

	In the circumstances of the case, and particularly the mode of presentation of the plaintiff’s case, I am satisfied that the learned trial judge must have reached his decision on the basis of inference from the established facts, summarised above.  In particular his decision appears to have been based on inferences from the circumstantial evidence of the position of the vehicles, the configuration of the roadway, 
the skid mark, and the engineering evidence about these matters.  In this regard, as was observed by McCarthy J. in the case mentioned above, “an Appellate court is in as good a position as the trial judge”.

Decision.
	It is a feature of the case that the defendant’s vehicle was only an inch or so narrower than the carriageway on which it was constrained to drive.  Their engineer, Mr. Watson, frankly said that he would expect the driver to give himself a few inches of clearance from the margin on the left hand side of the road:-
“I would not expect him to drive tight to the grass only in the event that he met an oncoming vehicle”.

	He said that under normal circumstances he would expect a driver to leave a margin of 6 inches to a foot but on approaching a bend in either direction he would expect him to stay as close as he can to the left hand margin at those points.

	I believe there is substance in the critique offered by Mr. Watson of Mr. Mooney’s reconstruction of the accident. His theory depends on the proposition that the bus was travelling along the line of the skid mark for a significant distance prior to the skid marks commencement, but this assumption seems invalidated by the fact that there was undisputed evidence that the bus swerved or veered to the left before braking.  Indeed the learned trial judge found as a fact that this had happened.

	It seems to me therefore that, looking at the best case the plaintiff can make, the bus may have been slightly over the centre line at a point of 50 to 60 yards before the impact.  This may have been less than a foot and certainly is not much more than that. This is on the basis that, if he were six inches from his left hand margin, he would have been five inches over the white line.  The maximum distance across the line for which Mr. Mooney contended was two feet.  Since this distance does not allow for the fact that the bus’s line of travel was plainly mistaken by 
him - he did not allow for the undisputed swerve before braking - it is clearly too great.  This is not to discount the defendant’s evidence that he was not at all over the central line, but merely to look at the height of the plaintiff’s case, realistically assessed, as a hypothesis.  

	Even on that basis, the plaintiff had ample room to pass the defendant on his, the plaintiff’s, wider carriageway even if the defendant had taken no action.  I am far from convinced that a minor crossing of the white line bounding the narrower carriageway would in itself amount to negligence on the part of a driver of a wide vehicle, travelling at moderate speed.  But even if such crossing did occur, I do not believe that in the circumstances of this case it played any causative role in the accident.  The plaintiff, if driving with reasonable care, had ample opportunity to pass the bus safely or, if he mistakenly believed that he had not room to do so, to stop.  In fact he lost control of his vehicle and this was the direct cause of the accident.  I do not believe that his loss of control can be attributed to any act or omission on the part of the defendant, or that it was the foreseeable consequence of any such act or omission.  The loss of control, on the findings of the learned trial judge, was probably due to the incorrect angle at which the plaintiff entered the acute bend.

Pothole.
	I will deal briefly with this topic since it occupied a considerable amount of time at the hearing.  At the end of Mr. Mooney’s direct evidence, counsel for the plaintiff began a question:-
“If it were a case the bus was attempting to avoid this depression or manoeuvre this depression…”.

There was an objection that there was no evidential basis for the question.  Counsel for the plaintiff eventually said “I won’t pursue it but if there is to be evidence unfolding from the defence that the bus driver in fact was making an attempt to circumnavigate the depression, if your Lordship will give me leave to recall Mr. Mooney”.  That was agreed.  But the bus driver did not say this.  He said that the pothole and the depression in the road were not present at the time of the accident.  The topic was taken up by the defendant’s engineer who said that a pothole could occur overnight:  cracking on the road would take longer but the depression within the area of cracking could occur very rapidly.

	Immediately before the hearing of this appeal the plaintiff filed additional written submissions in which he said that the defendants had failed to deal adequately properly or credibly with the pothole issue.  This, it was submitted, touches the credibility of the first-named defendant.  The plaintiff said it was not until this gentleman gave evidence that the case that there was no pothole or depression on the road, and therefore that it was not necessary for him to drive the bus around it, had been made.  Furthermore, it was said that this proposition should have been put to Mr. Carolan, another engineer on behalf of the plaintiff, who had taken photographs showing the depression.

	In my opinion there is no substance in these criticisms.  Mr. Carolan did not say that there was any pothole or other feature on the road at the time of the accident, but merely provided evidence of what the position was about five weeks later.  It is clear from the plaintiff’s counsel’s statement, quoted above, that in raising the topic of potholes with the engineer she was merely providing for the possibility that the defendant might make the case that a pothole played some role in the accident.  He did not do so.   

	The plaintiff also referred to a solicitor’s note of District Court proceedings in this matter and complains that the first-named defendant, who seems to have been a prosecution witness in the District Court, 
“… never gave evidence to the effect that there was no pothole present in the road”.  In my view this is a meaningless criticism of the defendant who had never claimed there was a pothole or any other irregularity in the road surface which had any role in the accident.  The most he seems to have done, and only when it was expressly put to him in cross-examination in the District Court, was to agree that he might avoid a pothole if there was one.  The defendant did not rely on any pothole or other feature of the road surface:  if the plaintiff wanted to do so it was clearly for him to establish the existence of such a feature at the time of the accident either by direct evidence, expert testimony, or a combination of those.  The defendant was not obliged to put the non-existence of a pothole to a witness who did not say that there was one at the relevant time.

Conclusion.
	I would allow the defendant’s appeal and substitute for the High Court order an order dismissing the plaintiff’s claim.  In those circumstances it is unnecessary to consider the appeal on damages.