TOOHEY J. I agree with the reasons of McHugh J. and with the orders his Honour proposes.

McHUGH J. This appeal is brought by a plaintiff in an action for damages in the Supreme Court of the Australian Capital Territory against an order of the Full Court of the Federal Court of Australia setting aside judgment in his favour in the action. The Full Court remitted the matter to the Supreme Court for further hearing after concluding that the reasons of Kelly J., the trial judge, did not "clearly reveal his findings of fact in relation to the circumstances of the subject accident". The principal question in the appeal is whether this conclusion of the Full Court was correct.

2. The plaintiff (the appellant) suffered personal injury at about 12.30 pm on 7 July 1982 when a motor cycle he was riding collided with the rear of a car driven by the defendant (the respondent) in Gladstone Street, Fyshwick. Both vehicles were travelling in an easterly direction with the defendant's vehicle ahead of the plaintiff's cycle. The plaintiff estimated that, when he first entered Gladstone Street, the defendant's vehicle was about 100 metres, or on another version 50 metres, ahead of him. The distance which the plaintiff travelled along Gladstone Street before the collision was also the subject of differing estimates, but the greatest estimate was 300 metres. As the defendant approached a store and parking area on the southern (i.e. his right hand) side of the street, he moved "a couple of feet" to the right of the lane in which he was travelling. He gave no indication that he was moving to the right. The defendant's speed was about 15 kilometres per hour. After veering right, the defendant almost immediately turned left for the purpose of entering a parking area on the northern side of the street. The trial judge found that the defendant turned left at an angle of 30 degrees and that the vehicles collided when the front of the defendant's vehicle was almost at the gutter on the northern side of Gladstone Street.

3. The defendant gave evidence that 11 metres before he turned to the left he put on his left-hand indicator. He also claimed that he was travelling on the left-hand side of the roadway near the gutter. In his evidence, the plaintiff said that he "manoeuvred to the left of the lane towards the gutter-side of the lane" after the defendant turned to the right. He said that, when the defendant turned right, his cycle was about two car lengths behind the defendant's car and that, when the defendant turned left, his cycle was about one car length away. The plaintiff asserted that the defendant gave no signal that he was turning either right or left.

4. The learned judges in the Full Court said that it was "critical to the proper determination of liability in the action" for findings of fact to be made as to the position of the defendant's vehicle on the roadway when he veered to the right and when he commenced to make his left turn. Their Honours were of the opinion that the trial judge had not made findings on these matters. They said that it was even more fundamental to the determination of the question of liability "whether the defendant gave the appropriate lefthand indicator signal before turning in towards the car park". Their Honours said that, although certain passages in the judgment of the trial judge might "obliquely" amount to a finding of fact that the defendant did not have his left indicator on when he turned left, the "resolution of that issue was not satisfactory in the circumstances of the trial". They went on to say:

left as was alleged against him in the statement of

the part of the plaintiff would at least constitute

5. With respect I think that their Honours were in error in their implied criticism of the trial judge for not making findings as to the defendant's position on the roadway. It is true that Kelly J. did not make any finding as to the exact position of the defendant on the roadway at any time. But it was not necessary to do so.

6. The position of the defendant's vehicle on the roadway was relevant in so far as it threw light on whether his action in moving to the right might indicate that he was going to the parking area on the southern and not the northern side of the street and whether the plaintiff could safely pass on his inside. But if the defendant was not in the left lane, as he asserted, it was unnecessary to make any particular finding as to where his vehicle was.

7. I think that Kelly J. did reject the defendant's evidence that he was travelling in the left-hand lane. I think that his Honour accepted, as the plaintiff had asserted, that the defendant was in the right of the two imaginary lanes on the northern half of the road. The learned judge said:

"There was nothing to suggest that he could not

have passed the defendant on the left in safety.

Indeed, the evidence does not establish that he was

travelling directly behind the defendant. The

defendant gave evidence that he was travelling on

the left hand side of the road, close to the

gutter, but in an answer to an interrogatory ...

tendered against him he indicated by a sketch that

his vehicle was in fact very close to the centre of

the road before it turned to the right."

The last sentence in this passage is more naturally read as a rejection of the defendant's evidence that he was in the left lane than a bald recitation of his evidence on the point.

8. Once Kelly J. rejected the claim of the defendant that he was travelling near the gutter and found that there was nothing to suggest that the plaintiff could not have passed the defendant on the left in safety, it was not necessary to make any precise finding concerning the defendant's position on the roadway.

9. However, as the reasons of the Full Court accept, the decisive question in the case was whether the defendant displayed his left-hand indicator before turning left. The Motor Traffic Ordinance 1936 (ACT), s.136, makes it an offence for a driver to turn left without giving a prescribed signal at least 30 metres before his vehicle commences to turn or, if it is not practicable to do so at that distance, as soon thereafter as it is practicable to do so. Despite the defendant's statement that he did not give any indication of his left turn until he was 11 metres from the point of the turn, the case seems to have been fought on the basis that, if the defendant did display his left indicator in the manner which he claimed, he was not negligent.

10. Notwithstanding the doubt which the learned judges of the Full Court held about the matter, I am satisfied that Kelly J. did reject the defendant's evidence that he displayed his left indicator before turning left. In the course of his judgment, his Honour recited the plaintiff's evidence that the defendant moved "a couple of feet to the right in the lane in which he was travelling at about 15 kilometres per hour" and that the plaintiff had seen "no braking lights on the defendant's vehicle nor any hand signal". The learned judge also referred to the plaintiff's evidence that he had moved left after seeing the defendant turn right and that he was unable to avoid colliding with the rear of the defendant's vehicle. His Honour then said:

"The defendant insisted in evidence that at

all times when he turned left he had his left

indicator on. He did not indicate that he was

turning right having regard to the relatively

slight distance he proposed to turn. It is common

ground that he did turn slightly to the right

before veering left to the northern parking area

and this satisfies me that the plaintiff was in

fact keeping a proper lookout."

11. After making some other findings, the learned judge said:

"It seems plain on the evidence generally that the

defendant travelled the last 50 metres or so before

the collision without slowing down. It follows

logically enough that he did not during those last

50 metres or so apply his brakes and this lends

support to the plaintiff's and Mr Tatiyakorn's

evidence that he did not show braking lights. As I

have already said, I accept that the plaintiff was

keeping a proper lookout and it would have been

impossible in the circumstances for him to have

failed to see at the distance he was travelling

behind the defendant a left hand indicator in

operation.

Accepting the plaintiff as I do, I am

satisfied that the defendant was negligent in

turning as he did. When he turned to the right he

gave no signal and would inevitably have led a

person following behind as the plaintiff was to

expect that he would continue the turn. His

immediate veering to the left placed the plaintiff

in an impossible position for he could not then

avoid the collision.

Although I think that the plaintiff was

travelling close to the defendant's vehicle in

front of him, I do not think he was negligent in

doing this at least to the point where the

defendant turned to the right. There was nothing

to suggest that he could not have passed the

defendant on the left in safety."

12. As I have said, I am satisfied that the proper conclusion to be drawn from these passages is that the trial judge rejected the defendant's evidence that he displayed his left indicator before turning. Indeed that finding was inevitable once the trial judge accepted the plaintiff's evidence that he saw no indicator and found that he was keeping a proper lookout.

13. The learned judges in the Full Court said that they had difficulty with the proposition that it "necessarily" followed from the finding that the plaintiff had observed the defendant turn slightly to the right that the plaintiff had kept a proper lookout. However, the trial judge did not say that it "necessarily" followed from that observation of the plaintiff. The plaintiff's case was that he kept a proper lookout but saw no braking lights or any hand signal on the part of the defendant. The plaintiff's observation of the right turn, which the defendant admitted he made immediately before the left turn, gave strong support to the plaintiff's claim that he was keeping a proper lookout generally. His Honour made no error in using the plaintiff's observation of a relevant happening as support for his conclusion that the plaintiff was keeping a proper lookout.

14. Accordingly, the Full Court erred in finding that the trial judge had not made sufficiently explicit findings in respect of the matters to which I have referred and erred in remitting the matter to the Supreme Court for further hearing. The Full Court should have determined the appeal upon the basis that the trial judge had found that, in circumstances where the plaintiff was keeping a proper lookout and was about two car lengths behind the defendant's vehicle, the defendant without any indication veered to the right "a couple of feet" and then turned left across that part of the road where the plaintiff was overtaking him. On that basis a finding of negligence on the part of the defendant and a finding of no contributory negligence on the part of the plaintiff was not open to challenge.

15. However, Mr Ellicott Q.C., who appeared for the defendant, contended that the trial judge had also failed to determine a number of other issues which were vital to the resolution of the case. He contended that the plaintiff's evidence was internally inconsistent and was inconsistent with the evidence of one of his witnesses. The inconsistencies concerned such matters as speeds, distances and the exact point where the plaintiff decided to overtake the defendant's vehicle. Mr Ellicott submitted that the trial judge had failed to discharge his duty to find the primary facts and that "the proper course is to send it back". However, the critical issues in this case were whether the defendant began to display his indicator about 11 metres before he made his turn, whether the plaintiff was keeping a proper lookout, and whether it appeared safe for the plaintiff to pass the defendant on his left-hand side. The trial judge made findings on these issues. He was not obliged to make findings about inconsistencies in evidence in respect of peripheral matters which threw no light on the real issues in the case.

16. As the Full Court has failed to determine the appeal upon the evidence and the findings of the trial judge, as it should have done, the question arises as to what course should now be followed. Should the matter be remitted to the Full Court or should this Court dispose of the case?

17. I think that the better course is that this Court should dispose of the matter. The primary facts as found by Kelly J. were open on the evidence and are not open to challenge on appeal. They lead to the findings of negligence and no contributory negligence which he made. No purpose would be served by remitting the case to the Full Court.

18. It is true that the learned judge did not expressly rely on the demeanour of the plaintiff in making his findings of primary fact. But this does not mean, as Mr Ellicott submitted, that an appellate court is in as good a position as the trial judge to determine the primary facts of the case. When a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his determination cannot be overlooked. It does not follow that, because the learned judge made no express reference to demeanour and credibility, they played no part in his conclusion: cf. Martin v. Option Investments (Aust.) Pty. Ltd. (No. 2) [1982] VicRp 45; (1982) VR 464, at p 468. I do not accept that in this case the learned trial judge's observations of the demeanour of the plaintiff and the defendant and their manner of giving evidence played no part in his findings. I think that they almost certainly did. In accordance with the rules relating to the review of findings of fact based in whole or in part on demeanour, those findings are not open to review in an appellate court. The judgment for the plaintiff must be reinstated.

19. The appeal to this Court should be allowed. The order of the Federal Court allowing the defendant's appeal to that Court should be set aside. In lieu thereof, it should be ordered that the appeal by the defendant to the Federal Court should be dismissed with costs. The defendant-respondent must pay the costs of and incidental to the appeal to this Court.

Set aside the order of the Federal Court of Australia dated 5 November 1987 and in lieu thereof order:

(1) The appeal to the Federal Court be dismissed.

(2) The appellant in the Federal Court pay the costs of

the respondent in the appeal to that Court.