NICHOLLS-CHAPPELL v Irving - [2000] WASCA 288

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: NICHOLLS-CHAPPELL -v- IRVING [2000] WASCA 288

CORAM: MALCOLM CJ
IPP J
PARKER J

HEARD: 11 SEPTEMBER 2000

DELIVERED : 10 OCTOBER 2000

FILE NO/S: FUL 70 of 2000

BETWEEN: CHRISTOPHER EUGENE NICHOLLS-CHAPPELL
Appellant (Plaintiff)
AND
RICHARD ANDREW IRVING
Respondent (Defendant)

Catchwords:

Negligence - Motor vehicle collision - Road obscured by dust cloud - Evidence suggesting appellant veered to centre of road - No evidence of negligence by respondent

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Appellant (Plaintiff) : Mr B G Bradley
Respondent (Defendant) : Mr J G Staude

Solicitors:

Appellant (Plaintiff) : Kuscevich & Associates
Respondent (Defendant) : John G Staude

Case(s) referred to in judgment(s):

Cooke v Roberts, unreported; SCt of SA; BC9000303; 12 July 1990
Watt v Towns (1993) 18 MVR 309

Case(s) also cited:

Nil

MALCOLM CJ: This is an appeal from a judgment of Mr Commissioner Eaton in the District Court dated 11 April 2000 by which the learned Commissioner dismissed the appellant's claim for damages against the respondent arising out of a motor vehicle accident on 8 August 1994.
On the day of the accident the appellant was driving west on the Port Hedland/Marble Bar Road travelling on a journey from Telfer towards Port Hedland. It was late afternoon. The respondent was driving east towards Marble Bar. Both were driving 4‑wheel drive vehicles. The appellant had made the journey on many occasions. The distance from Telfer to Port Hedland was some 420 km and the journey normally took some seven hours.
There was a red utility on the road in front of the appellant. The road was unsealed and generally in bad condition. The appellant caught up with the red utility soon after the Coongan River crossing. He was then travelling at 60‑80 kph, the speed varying dependent on the road conditions. Both vehicles threw up a cloud of dust which was hanging over the road because there was only a slight breeze. The dust cloud presented what the appellant described as a "slight problem". The respondent's evidence was that at about 4.30 pm he was driving east on the unsealed road about 28 km west of the Coongan River crossing. He was on a straight stretch of road approaching a long right‑hand bend. He saw dust indicating traffic on the road ahead coming towards him. As he entered the bend he saw the red utility. It was not far from him when he saw the vehicle rather than just the dust it was causing. The respondent said that when the two vehicles passed each other they were about four to five metres apart.
The respondent said that as he approached the red utility he could see a lot of dust so he slowed down. He realised that the dust was not blowing off the road but was hanging over it. As he put it, he said, "I sort of went into it and then that was it".
Because the appellant's vehicle was travelling in the dust thrown up by the red utility, it was not visible. The appellant's vehicle and the respondent's vehicle collided right‑hand front to right‑hand front somewhere on the road surface, both vehicles being enveloped in the dust cloud of the red utility. Neither driver saw the other vehicle prior to the collision.
The learned Commissioner at [7] - [18] gave the following summary of the evidence of the parties:
"7The plaintiff's vehicle and the defendant's vehicle collided right-hand front to right-hand front somewhere on the road surface, both vehicles enveloped in the dust cloud of the red utility such that neither driver saw the other vehicle prior to the collision.
8In his evidence-in-chief the defendant said that as he neared the oncoming red utility he was positioned on the left-hand side of the carriageway which was, he said, about 12 metres wide. He was about a metre from the left-hand edge of the carriageway.
9The plaintiff described approaching the long bend, to him a sweeping left-hand bend, travelling about 100 metres behind the red utility. He wanted to overtake the utility and about 1 to 1½ kilometres before the bend he took his vehicle close to the centre of the road in an attempt to see if it was safe to pass the utility. He could see a lot of dust on the road ahead, which indicated the presence of another vehicle, although he could not see another vehicle. In all probability he could see the dust from the defendant's vehicle. The plaintiff says that he moved his vehicle back over to the left-hand side of the road so that he was about a metre from the windrow, that being the line of dirt or gravel thrown up by graders, often marking the edge of the carriageway of an unsealed road. He said that he was slowing down but was enveloped in dust, unable to see anything other than the windrow on the front left-hand side of his vehicle. He said that he was about a metre or a metre and a half from it and inferred from that that he was on the left-hand side of the road. Immediately prior to the collision he was unable to see the red utility travelling in front of him by reason of the dust cloud being thrown up by that vehicle and certainly did not see the defendant's vehicle approaching. In re-examination the plaintiff said:
'I had eased and had a look for oncoming vehicles. I went back and I went in to the edge of the windrow - edge of the road -and I continued on in that path until I couldn't see anything at all.'
10He was then asked whether there was a point when he lost sight of the windrow. The plaintiff replied:
'There was a very short second - half a second, whatever.'
11Then, he said, 'that was the impact.' When asked if there was any chance that his vehicle could have drifted right in the time that he had lost sight of the windrow he replied that there was not because he 'was steering to it.'
12On 19 August 1994 the plaintiff made a statement to a police officer while still in hospital as the result of the injuries that he had received in the motor vehicle accident. In that statement he said:
'I was driving in a north westerly direction on Marble Bar Road and I estimate I would have been travelling at 40-50 kmh. I had been travelling at 70-80 kmh but had slowed down as I was approaching a cloud of dust that was coming towards me about 500 metres away. I was following a red Holden utility - this vehicle would have been approximately 100 metres ahead of me. I attempted to overtake this Holden utility and I had moved near the centre of the road. This is when I saw the oncoming dust cloud. After seeing this dust cloud I had slowed down to about 40-50 kmh and I remember steering my vehicle to the left. When I had positioned my vehicle near the centre of the road, I to the best of my knowledge belief I was on my side of the road. The next thing I remember is a collision, a heap of dust and then a loud bang. At the time of the accident I was driving directly into the sun, that's another reason I know I was not speeding, as the visibility was restricted. I'm not exactly sure of my position on the road at the time of the accident but I believe I was on my side of the road. As a result of the accident I have received multiple fractures to my right arm which is likely to be a permanent injury.'
13On 14 September 1994 the plaintiff signed another statement which was made at Shenton Park Rehabilitation Hospital in the presence of one Elvina McFaul, an insurance assessor. In that statement he said:
'By about 5.00 pm I had travelled through the hills over the Shaw River and was just back on the dirt section of the Marble Bar Road. I think I was pretty close to Bear Creek. I was travelling behind another vehicle, I think it was a red Holden utility, and the wind was blowing the dust from the north to the south off the road. The vehicle in front of me had been travelling at erratic speeds and as I was aware that we were on a fairly straight stretch of road, I decided to check to see if I could safely pass the vehicle in front. At that stage I was probably 100 metres behind him and was clear of his dust. I moved over on the road to my right to check the road ahead and could see dust from an oncoming vehicle. I immediately moved back to the left and entered the dust from car (1). I remember being able to see the windrow to my left and was definitely on the correct side of the road but still in the dust of car (1), when something hit me or I hit it, I do not really know. I think I was in third gear and would estimate my speed as being between 30 kilometres per hour and 50 kilometres per hour but slowing. My vehicle was hit on the right-hand side, I think right down the side, as in a side swipe.'
14There was, in evidence before me, a photograph of the defendant's Toyota vehicle which clearly depicted the damage caused by the impact to that vehicle confirming the collision described by the plaintiff, the damage being to the right-hand front fender and down the right side of the defendant's vehicle.
15The defendant made a written statement to police at Marble Bar at 9.00 am on the following day. He said that the accident had occurred at about 4.45 pm on the previous day at a point about 70 kilometres west of Marble Bar. He described the accident as follows:
'Travelling south-east along Newman Tabba Tabba Road, towards Marble Bar at 100 kilometres per hour an oncoming vehicle passed me and created dust across the road and down the road, this did not clear as there was no wind and I did not see the vehicle that hit me. This was approximately 70 kilometres from Marble Bar and I was wearing a seat belt.'
16He drew a sketch of the locality depicting the collision as having occurred in a sweeping bend with both his and the plaintiff's vehicle depicted as being close to the centre of the road, the plaintiff's vehicle being slightly further from its left-hand edge of the road than his vehicle.
17There was no independent witness to the collision. It seems that the driver of the red utility continued on towards Port Hedland, probably completely unaware of the collision having occurred in his wake. Had he looked in his rear vision mirror immediately after the collision he would have seen only dust. In any event, not long after that he was out of the long bend and the two vehicles were probably out of sight. No police officer attended the scene. There were no photographs or recordings made contemporaneously by any person of the positions of the respective vehicles immediately after the collision. There was no marking of the road surface to indicate a point of collision.
18Each driver says that he was on his correct side of the road immediately prior to the collision. The evidence suggests that the defendant's vehicle was travelling substantially faster than the plaintiff's vehicle immediately prior to the collision but the speed of the respective vehicles does not appear to have been a significant factor in the circumstances which led to the collision."
The learned Commissioner considered three possible explanations for the collision. The first was that, at the point of collision, the appellant's vehicle was either wholly or partly on its incorrect side of the road. The second was that, at that point, the respondent's vehicle was travelling either wholly or partly on the incorrect side of the road. The third was that, at the time of the collision, both vehicles were travelling so close to the centre of the road that a portion of the right‑hand side of each vehicle was on the incorrect side of the road.
When cross-examined, the respondent said that he had travelled the road hundreds of times over a period of about six years. When he first saw the approaching red utility his speed was between 80 and 100 kph. The utility was about 20 metres away when he first saw it. He said that with the sweeping bend in front of him the presence of the approaching red utility was at first indicated by a cloud of dust to his right. He decelerated when he saw the dust. He said that he passed the red utility and was immediately in the dust, unable to see anything for approximately two seconds. The respondent maintained that he was still on the correct side of the road. The learned Commissioner commented at [23] - [25] on this evidence as follows:
"23Two things were in the defendant's favour but not in the plaintiff's favour. The first was that the defendant was driving with the sun, low in the western sky, behind him and the second is that, as he approached the long sweeping bend, he had clear visibility. By contrast, the plaintiff, driving west, was driving towards the sun low in the western sky. He was following a vehicle which he was hopeful of overtaking. He had very poor visibility by reason of the cloud of dust being thrown up by that vehicle and the position of the sun.
24The defendant was aware as he approached the long bend, of the presence of the red utility by reason of the dust cloud being thrown up by it even though the red utility was not then in view. I accept that when those two vehicles passed each was on the correct side of the road and that the defendant knew that he was negotiating a long right-hand bend. The photograph marked Exhibit 1‑A depicts a view of the bend from a vehicle travelling east. It illustrates approximately what the defendant would have seen as he approached the bend. There would have been the dust of another vehicle around the bend but, to him, visible only over the top of the low roadside vegetation.
25Exhibit 2‑A is a photograph depicting the view from a vehicle travelling west on its correct side of the road and approaching the long bend. It is a view that the plaintiff would not have had by reason of the dust from the red utility and the position of the late afternoon sun."
So far as the appellant's evidence was concerned, he said that about a kilometre or a kilometre and a half from the commencement of the bend he pulled his vehicle out of the dust being thrown up by the red utility across to the centre of the road to see if it was safe to overtake. He could see the dust of another vehicle approaching from the opposite direction but not the other vehicle. He pulled back into the envelope of dust behind the red utility still travelling at about 40 or 50 kph.
The learned Commissioner went on to say at [28] - [31]:
"28The probabilities are that the plaintiff, having pulled back into the envelope, was not aware of the long bend ahead. On his own evidence, when he had emerged from the cloud of dust thrown up by the red utility in order to ascertain whether it was safe to overtake, his visibility of the road ahead would have been affected not only by dust but also by the sun low in the western sky. The defendant went into the long bend clearly knowing that it was there. By contrast, the plaintiff, on the balance of probabilities, did not. Not only could he not see either the oncoming vehicle or the red utility, he lost sight of the windrow at a crucial time. When he did so he was without a reference point driving blindly forwards not knowing that he had entered what was, for him, a long left-hand bend. His inability to see anything meant that, momentarily, he had no reference point by which to steer, not even sight of the red utility. As the red utility, the driver of that vehicle having a clear vision of the road ahead, negotiated the long left-hand bend, the plaintiff did not, his vehicle continuing on a course that, by reason of the presence of the bend, meant that he was moving towards and, in all probability, across to the incorrect side of the road. I find, on the balance of probabilities, that it is the first of the three scenarios referred to by me that occurred.
29In that regard, it is notable that, in his statement, made on 19 August 1994, some 11 days after the accident, the plaintiff made no mention of either the bend in the road or the windrow. He did mention that he had attempted to overtake the Holden utility and in doing so had moved to the centre of the road. He remembers seeing the cloud of dust indicating the presence of another vehicle and steering back to the left-hand side. Importantly, he said:
'When I had positioned my vehicle near the centre of the road, I to the best of my knowledge belief I was on my side of the road. The next thing I remember is that a collision, a heap of dust and then a loud bang.'
30He went onto say that he was not exactly sure of his position on the road at the time of the accident but believed he was on his side of the road. That is in keeping with my findings.
31Having regard to the fact that the defendant, with the benefit of a clear view of the oncoming red utility and the bend in the road ahead, passed the red utility without difficulty before entering the cloud of dust being thrown up by that vehicle, I find, on the balance of probabilities, that the defendant was on the correct side of the road even though he too was momentarily blinded by the dust thrown up by the red utility. Although the defendant was tackled at some length in cross-examination over the speed of his vehicle immediately prior to the collision, I find that speed per se did not contribute to the collision. To the extent that the cross-examination as to speed was directed also to the question of credibility, I concluded, having observed the defendant giving evidence, that he did so truthfully."
The learned Commissioner also found that from a point beyond the Coongan River crossing the appellant was intent on overtaking the red utility. The learned Commissioner found that he chose to attempt to overtake the red utility in very dangerous circumstances having regard to the state of the road, the dust being thrown up by the utility and the difficulties of visibility compounded by the sun being low in the western sky, the direction in which he was travelling. The learned Commissioner went on to say:
"Had he waited back a safe distance such that he was not travelling in the dust of the red utility he would have afforded himself a clear view of the road ahead including any change in the road conditions or the course of the road and any oncoming traffic. He chose not to do so, depriving himself of the ability to see clearly ahead, the windrow, for a time, being his only reference point and then, at a crucial time, with no reference point such that his vehicle, without him knowing it, was allowed to travel to the incorrect side of the road and into the path of the defendant's oncoming vehicle. Had he not done so, staying back a safe distance and deferring his intentions to overtake for the few kilometres of dirt road left before again travelling on sealed road, the plaintiff's and the defendant's vehicle would have passed safely metres apart from one another on what was an ample carriageway as the defendant's vehicle and the red utility had done a moment before."
The learned Commissioner also said at [37]:
"The plaintiff's case against the defendant is dependant upon the plaintiff proving on the balance of probabilities that the defendant's vehicle had been driven by the defendant onto the incorrect side of the road or that by some means he allowed his vehicle to travel to the incorrect side of the road such that there was a collision with the plaintiff's vehicle. I have found, on the balance of probabilities, that this did not occur. Having regard to the particulars of negligence alleged against the defendant by the plaintiff in paragraph 5 of the statement of claim, I find that there was no evidence that the defendant failed to keep any or any proper lookout or that he drove without due care and attention. To the extent that it might be said, in accordance with paragraph 5(c) of the plaintiff's statement of claim, that the defendant drove at a speed which was excessive in all the circumstances having regard to the difficulties caused by dust, I find that the speed of the defendant's vehicle immediately prior to the accident was somewhere between 70 kilometres per hour and 100 kilometres per hour and that, whatever it was, it did not contribute to the accident. Paragraph 5(f) of the plaintiff's statement of claim alleges that the plaintiff failed to brake, swerve, steer or otherwise manoeuvre his vehicle so as to avoid the accident. I find that he was not negligent as alleged. The defendant was travelling on a carriageway wide enough to permit the passage of two vehicles travelling in opposite directions without difficulty. As with the appearance of distant headlights at night, the presence of another vehicle was indicated by the pall of dust being thrown up by that vehicle notwithstanding that the defendant could not see the vehicle. When he did see the oncoming vehicle he was approaching or into a long bend. The road being unsealed it may have been dangerous, in such circumstances, to break heavily. There was, so far as the defendant could see, only the red utility approaching. He was not aware of the existence of the plaintiff's vehicle. On my findings, he passed the red utility safely with several metres between them and would have passed the plaintiff's vehicle equally safely had it not been for the fact that the plaintiff had unwittingly allowed his vehicle to travel onto the incorrect side of the road."

It was on this basis that the learned Commissioner concluded that the accident was caused by the negligence of the appellant with the consequence that his claim was dismissed.
The grounds of appeal attack the finding of negligence on the part of the appellant as well as the finding that the respondent was not negligent. Ground (1) of the grounds of appeal attacked the finding that the appellant drove his vehicle on the incorrect side of the road and so caused the collision. It was contended that the learned Commissioner accepted the evidence of the appellant that he had been driving in close proximity to the windrow at the left‑hand side of the road and had been keeping the windrow under watch, "except when blinded by dust momentarily immediately prior to the collision". The accident occurred within two or three seconds of the appellant being blinded by dust. The respondent was blinded by dust for some two seconds from the time his vehicle passed the oncoming red utility until the time of the collision. It was also contended that there was no basis for a finding that the appellant's vehicle was on the incorrect side of the road when the collision occurred. In my opinion, however, it was open to the learned Commissioner to infer from the fact that the appellant lost sight of the windrow on the left‑hand side of the road that his vehicle had in fact travelled toward the centre of the road in the seconds preceding the accident after the appellant lost sight of the windrow.
It was further contended that the Commissioner should have found that the speed at which the respondent was travelling was excessive in the circumstances, and that the respondent should have moderated his driving to reduce or avoid the risks associated with the dust and the potential of the dust to deprive him of vision. It was also said that the respondent ought reasonably to have foreseen that there may have been more than one vehicle travelling toward him. In particular, it was contended that it was speculative for the learned Commissioner to make a finding as to which of the two vehicles had travelled to the incorrect side of the road at the time of the collision. This was because both drivers were blinded by dust at the material time and both were unaware of the position of their respective vehicles on the road surface. In my opinion, however, this contention overlooks the acceptance by the learned Commissioner of the fact that the respondent's vehicle and the red utility were some four to five metres apart when they passed one another, indicating that the respondent's vehicle was then clearly on the correct side of the road immediately prior to the collision, bearing in mind that the respondent was only blinded by dust for approximately two seconds prior to the collision. There is nothing to suggest that in those two seconds the respondent's vehicle did other than continue round the bend in the same path. As against that, it is clear that the appellant lost sight of the windrow on the left‑hand side of the road and did not know where he was when the collision took place. In those circumstances there was a clear inference open on the evidence that the accident was caused by the appellant's vehicle veering to the centre of the road and striking the respondent's vehicle. In my opinion the appellant, being aware of the oncoming vehicle, should have slowed down or stopped until he was clear of the dust from the red utility to ensure that his vehicle and the oncoming vehicle could pass with safety. There was nothing to suggest to the respondent that there was a second vehicle closely following the red utility and obscured in the cloud of dust thrown up by that vehicle. I do not accept that there was a reasonably foreseeable risk that there may have been a vehicle following the red utility in a position so close to it that it was travelling "blind" in the dust cloud thrown up by the former vehicle. There was nothing in the evidence to suggest that the respondent's vehicle veered to the wrong side of the road. There was a clear basis for such an inference in the case of the appellant's vehicle.
There was nothing to suggest that the speed of the respondent's vehicle in any way caused or contributed to the accident.
For these reasons I would dismiss the appeal.

IPP J: I have had the advantage of reading the reasons for judgment of Malcolm CJ, I agree that the appeal should be dismissed and set out my reasons for that conclusion.
Counsel for the appellant conceded, correctly in my view, that the appellant had been negligent. The concession was based on the fact that the appellant, in the knowledge that there was a vehicle travelling in the opposite direction and with his vision obstructed by the setting sun, entered the dust cloud. It was open for the appellant to have slowed down further, pulled back out of the dust cloud, and allowed the red utility to proceed at a greater distance ahead of him than was indeed the case. He could have then driven in safety, as the learned Commissioner explained, for a few kilometres until the sealed road commenced. There was no need for him to have passed through the dust cloud, an operation which, in the circumstances, was fraught with risk.
In my opinion, however, there is another respect in which the appellant was negligent, and that concerns the appellant's movement towards his right shortly before the impact.
According to the learned Commissioner, the respondent's vehicle and the red utility were some four to five metres apart when they passed one another. As the learned Chief Justice points out, this indicates that "the respondent's vehicle was clearly on the correct side of the road immediately prior to the collision". This inference arises, as his Honour observes, because the respondent was only blinded by dust for approximately two seconds prior to the collision and there is nothing to suggest that in that period the respondent's vehicle did anything other "than continue round the bend in the same path". Counsel for the appellant submitted that there is also nothing to suggest that the appellant did not stay on his side of the road in the same way. I am unable, however, to accept that submission. The appellant admitted that he lost sight of the windrow on his left hand side of the road for a short period immediately prior to the impact. The inference is that he could not see the windrow because he had moved further to the right and widened the area of dust between the windrow and his vehicle . Hence, as the learned Chief Justice points out, "in those circumstances there was a clear inference open on the evidence that the accident was caused by the appellant's vehicle veering to the centre of the road and striking the respondent's vehicle".
In my opinion the appellant was negligent in driving his vehicle in such a way that, in circumstances where each motorist was blinded by the dust, he did not stay as far as possible on the left hand side of the road but veered to the right.
I turn now to the respondent's conduct. The dust cloud was visible to the respondent for some time and distance before he entered it. Nevertheless he proceeded through the dust cloud travelling at a speed of between 70 kilometres and 100 kilometres per hour.
In Cooke v Roberts, unreported; SCt of SA; BC9000303; 12 July 1990, Duggan J approved the statement in Mazengarb's "Negligence on the Highway" 4th ed at 168 to the effect that where drivers encounter conditions of bad visibility such as fog, sun blindness, smoke or dazzling headlights, "there is a duty to stop or proceed at a slow speed". The same applies, in my view, to a dust cloud. Whether a driver should stop or merely slow down will depend on the circumstances. In Watt v Towns (1993) 18 MVR 309 Grove J discussed the dangers of drivers entering a dust cloud and being blinded thereby. He remarked on the high potential danger that arises to motorists where visibility is obliterated. In the particular circumstances of that case his Honour considered that the two drivers, travelling in opposite directions, neither of whom stopped their vehicles before entering the dust cloud, were both negligent. The learned Judge remarked (at 313), "In the vernacular, they pressed on regardless of the risk that there was something unknown to them within the dust cloud. In so doing I consider that they were both negligent … ".
In Watt v Towns there were unusual circumstances which led Grove J to conclude that the drivers should have stopped. Taking into account the exigencies of travelling on the many unsealed country roads in this State I am not prepared to hold as a general rule that every time a driver sees a dust cloud ahead he or she should stop the car until the dust settles. This is not the customary mode of driving on unsealed country roads in this State. There may be particular circumstances where such conduct is required by a driver but this was not such a case. I do, however, consider that the respondent should have slowed down to a far greater extent than he did and was negligent in not doing so.
Nevertheless, in my opinion, the appellant failed to establish that the respondent's negligence was causative of the accident. Once it is accepted that the respondent remained on his line of travel and the appellant moved across to his right, then the accident would have occurred irrespective of the speed at which the respondent was travelling. The speed of the respondent did not contribute to the collision. This was properly recognised by counsel for the appellant who, in the course of argument,

accepted that the only basis on which the appellant could succeed on the appeal is if the respondent were held to have been negligent in failing to stop. I should say, that even if the respondent had stopped his vehicle immediately before entering the dust cloud, I am by no means persuaded that the accident would not still have occurred.

As the negligence of the respondent has not been shown to be causative, I would dismiss the appeal.
PARKER J: I have had the advantage of reading in draft the reasons which the Chief Justice has now published. I agree with the Chief Justice, for the reasons he has given, that the appeal should be dismissed.
I would merely add the following observations.
It was submitted for the appellant that both drivers were negligent in choosing to drive in the dust pall thrown up by the third vehicle, the red utility which was travelling in front of the appellant's vehicle, and that the respondent's negligence was greater as he drove at a higher speed.
The appellant was travelling behind the red utility and chose to approach the utility so closely that his vehicle was enveloped in the dust it generated on the gravel road. As a result he lost vision to the point that he could not see the utility or the respondent's oncoming vehicle, and he could not determine his position on the road surface or see that the roadway was curving away to his left. He did this because he wished to overtake the utility. For this reason he had moved wholly or partly to his incorrect side of the roadway but saw ahead the dust thrown up by the respondent's vehicle as it approached from the opposite direction. He realised he could not pass the utility at that stage so he pulled back into the thick of the dust pall thrown up by the utility and he then drove on in that pall. He did not slow his vehicle to fall back clear of the dust pall so as to give himself an opportunity to see something of the respondent's oncoming vehicle and to give the driver of that vehicle a chance to see the appellant's vehicle. The essence of his conduct was to choose to drive behind the utility even though blinded by its dust, and even though he could not see that vehicle or judge his position on the road or the direction of the road, when he knew a vehicle which he could not see was approaching from the opposite direction. His speed seems to have been determined by his judgment of the speed of the utility, not by any decision to slow because of the respondent's approaching vehicle.

This conduct is to be contrasted in material respects with that of the respondent. The respondent was not travelling in a dust pall. He had a clear view of what lay ahead including the gradual curve of the wide gravel road to his right and an oncoming dust pall apparently generated by a vehicle which proved to be the red utility. Unknown to the respondent, the appellant's vehicle was behind the utility but entirely hidden by the dust pall in which it was travelling. In my view, in the circumstances, there was no reason for the respondent to foresee the possibility of a vehicle being deliberately driven in the dust pall in such a position and manner that the driver had no vision of what lay ahead and so that his vehicle was entirely hidden by the dust.
The respondent did slow and did position his vehicle so that he would pass the oncoming utility safely. He did so conscious of the gradual curve of the road to his right. The learned Commissioner accepted the evidence that several metres separated the respondent's vehicle and the utility as they passed each other and that they did so safely. The respondent's vehicle was then enveloped by the dust pall, but this was only for the limited time it took to clear that part of it which temporarily enveloped the respondent's side of the road. To be temporarily enveloped in the dust was inevitable and unavoidable for any vehicle travelling in the opposite direction to the utility and the appellant's vehicle. Had the respondent been stationery his vehicle would have been enveloped as the other two vehicles passed him. Had he been stationery his vehicle would have been enveloped for a longer time than if he was moving, as the movement of his own vehicle would enable it to get through the pall more quickly.
Hence, in my view, there is a marked difference between the conduct of the appellant in choosing to drive in the dust pall of the utility ahead of him, and the respondent who positioned his vehicle carefully on the roadway to pass through the unavoidable dust pall apparently thrown up by the utility travelling in the opposite direction.
More critical, however, is the evidence with respect to the position of the appellant's and the respondent's vehicles on the roadway as they met. Once again the respondent's situation is to be contrasted with that of the appellant. The evidence does not support the view that having passed the utility the respondent steered back toward the centre and over to his wrong side of the road. He had been on a pre-determined steady course and the gentle curve would tend to ensure he remained toward his left hand edge of the road. The appellant, however, had deliberately pulled to his right to see if he could pass the utility and had then pulled back into the dust pall, apparently assuming the utility would not slow because he could not see if it did so. The appellant then sought to adjust the direction of his vehicle by what he could make out of the windrow on his left side of the roadway. But he lost sight of the windrow so that he had no directional guide, nor any idea of his position on the road, and he had had no opportunity to set himself on a steady directional course while he had a view of the road ahead. He did not appreciate the curve of the road to his left. If he was not correcting for this curve the effect would be that he would tend toward the centre and the incorrect side of the road (ie the respondent's side).
In the circumstances, the fact that he lost sight of the left side of the road in the dust could well provide confirmation that he had been moving to his right and away from his left hand side of the road. This is the view which the learned Commissioner took. I agree with the Chief Justice that it was a view open to the Commissioner on the evidence and that it is capable of supporting the Commissioner's finding that the appellant had moved to his right onto his incorrect side of the road.
Giving this finding and the other matters I have briefly canvassed, it appears to me to have been open to the learned Commissioner to be satisfied that neither the respondent's decision to drive through the oncoming dust pall nor the greater speed of his vehicle was causative of the collision.