Saltalamacchia v Zamagias

Judgment

1. PAYNE and KIRK JJA: We agree with the orders proposed by Price AJA for the reasons his Honour gives along with the following.
2. This Court is conducting an appeal by way of rehearing pursuant to s 75A of the Supreme Court Act 1970 (NSW) and thus "a judgment of the appellate court is required both on the facts and the law": Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [29]. The Court "may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires": s 75A(10).
3. The Court is empowered to order a retrial. New trials have been described as "an evil and a deplorable result, to be avoided wherever possible": Palmer v Clarke (1989) 19 NSWLR 158 at 164 (Kirby P, citations omitted). A new trial increases costs, delays resolution, and cuts across the aim of finality. Thus the rules provide that the Court must not make such an order unless it appears to the Court that some substantial wrong or miscarriage has been occasioned: UCPR, r 51.53(1).
4. This case raises an archetypal dispute of fact: was the relevant traffic light green or red? As Price AJA has explained, in this matter the only real evidence on point consists of witness testimony. The absence of any independent evidence casting light on that factual question makes this case an unusual one. The question of whether the plaintiff-respondent has discharged his onus of proof turns solely on whether his account is accepted in preference to that given by the defendant-appellant and her brother (Mr Halwagy), which depends upon findings of reliability and credit. The primary judge found the evidence of the plaintiff to be sufficiently reliable and credible to be accepted. Her Honour expressly rejected part of Mr Halwagy's evidence, relating to his account of what was said at the hospital on the night of the accident. But her Honour did not otherwise make findings that the remainder of his evidence and the evidence of the appellant was not credible or reliable; indeed, she suggested to the contrary at [51]. Nor did she say anything to suggest that she doubted the reliability or credibility of the appellant except to the extent that she regarded "the statements of the [appellant] and her brother made immediately after the accident to be a more accurate reflection of what happened" (at [53]). That reasoning was based on a misunderstanding of the evidence, as Price AJA has explained.
5. The High Court has indicated that beyond factual findings likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge": Warren v Coombes (1979) 142 CLR 531 at 551; [1979] HCA 9 quoted in Fox v Percy at [25] and in Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]. As the words "in general" indicate, the appellate court will not always be in such a position.
6. This is one such unusual case. Here, there are two competing versions of events where, in the absence of other objective or contemporaneous evidence, the contest falls to be determined solely by conclusions on reliability and credit. The primary judge's only conclusion on that front was afflicted by error. Given the nature of the evidence in this case this Court is not in a position to make such findings itself. On the existing record in this Court, it would be open to say in the circumstances that the respondent has failed to discharge his onus. But that would not be just as he has not hitherto had - and this Court cannot now provide - a full and fair determination of his case on the evidence. A substantial wrong or miscarriage has been occasioned. There should be a retrial on the issue of liability.
7. PRICE AJA: This is an appeal from a judgment of Ainslie-Wallace ADCJ (the primary judge) in the District Court of New South Wales. Billy Zamagias (the respondent) was injured on 22 May 2018 when the vehicle he was driving came into collision with a vehicle being driven by Antoinette Saltalamacchia (the appellant) at the intersection of Hoxton Park Road and Access Road in Cartwright, New South Wales. The issue at trial was which of the two drivers disobeyed a traffic control signal. The judge resolved that issue in favour of the respondent, awarding him substantial damages.
8. The appellant appeals against her Honour's judgment. There is no appeal against the quantum of the damages awarded.

Location

1. The collision occurred at about 2:30pm at a T-intersection where a side street called Access Road meets Hoxton Park Road, a main arterial road in South Western Sydney, from the south side of the main road. The intersection is governed by a set of traffic signals.
2. In the easterly direction, Hoxton Park Road has two ordinary traffic lanes and one right-turn lane, where motorists wishing to turn right into Access Road wait for a green arrow to be displayed on the traffic signals, allowing them to do so. To the right-hand side of that right-turn lane there is a transit way (T-way) reserved for buses and associated vehicles, which runs down the centre of Hoxton Park Road. The T-way is a single carriageway with two lanes: one for buses travelling east and one for buses travelling west. In order for motorists to turn right from Hoxton Park Road into Access Road, they must turn in front of the T-Way and in front of the traffic on Hoxton Park Road travelling west, both of which will be stopped by the traffic signals.
3. The T-way traffic lights display a white "B" signal meaning "go", which then turns amber and red to stop traffic on the T-way.
4. Evidence was adduced before the primary judge of the phasing of the traffic signals which govern the intersection by the tender of a letter from the Senior Networks Operations Officer for Transport NSW. As at the date of the accident, there were four phases to control traffic, three of which were summarised by the judge at J[4]-[7]: [4] … Relevantly, in phase "A", a green round signal is displayed for all eastbound (and westbound) traffic on Hoxton Park Road, a red arrow displayed for the right hand turn and a white B for the T-way lane. [5] In the T-way lane, there is one light, an illuminated "B", which is white when the T-way lane has right of way, and turning amber before turning red to stop traffic on the T-way. When the B light on the T-way is white, traffic in the right hand turn lane beside it has a red arrow. [6] Phase "B" displays a green round signal, a green arrow and a red B sign. If a pedestrian wishes to cross the road, the eastbound light is red and the right turn arrow is green. After 12 seconds, the red light changes to green. [7] Phase "C" permits traffic from Access Road to move onto Hoxton Park Road and in that event all other signals are red.
5. The "D" phase is a repeat of the "B" phase movement.
6. The normal sequence of operation of the lights was described in the letter as the "A" phase followed in turn by "B" and "C" phases. However, "B" and "C" phases are only introduced "if a vehicle or pedestrian demand has been received. If no demand is received, then either/all phases may be skipped in any cycle. Consequently, any combination including 'A' phase is possible". The letter further described "the amount of green time each phase received" as being subject to traffic volume. The range for the cycle was "from 42 seconds to 140 seconds" and would constantly vary between these two parameters "subject to vehicle volumes and traffic density at this and adjacent sites". Notwithstanding this, "each phase is terminated by 4 seconds of amber signal, followed by 2 seconds of red signal ('C' phase is 3 seconds) before the next phase is introduced".
7. In addition to her Honour's summary of phase "A", the letter disclosed that in phase "A": Pedestrian movement is permitted across Access Road subject to push button demand. If the pedestrian feature has been demanded by the push button on post 10 then a left turn red arrow will be displayed to westbound traffic for a period of six seconds at the commencement of the phase after which time the arrow is extinguished. If the pedestrian feature has been demanded by the push button post 11 then a left turn red arrow will be displayed to westbound traffic for a period of 12 seconds at the commencement of the phase after which time the arrow is extinguished. All other movements are held on a red signal.
8. A copy of the signal design layout of the intersection was enclosed with the letter.

The collision

1. At approximately 2:30pm, the respondent was driving a white Hyundai iLoad van in an easterly direction on Hoxton Park Road towards Liverpool in the T-way. He was entitled to drive in that lane.
2. The respondent's case was that as he was driving through the intersection, a white "B" signal was displayed and when he crossed the line into the intersection, a car to his left in the right-hand turn lane, turned directly in front of him. He swerved to avoid the car but the collision occurred.
3. The appellant was driving a white Volkswagen sedan with her brother in the passenger seat. The appellant's case was that she had been stationary in the right-turn lane facing east on Hoxton Park Road, as she was intending to turn right into Access Road. The appellant had stopped at the lights as the right-turn arrow was red when she arrived at the intersection. The right-hand arrow turned green and she proceeded to turn right. The collision occurred.
4. The respondent's contention was that the "A" phase of the traffic signals was operative when he proceeded through the intersection whereas the appellant's contention was that the "B" phase was in operation.
5. Both parties contend that they had right of way. They could not both be right. As the primary judge observed: The only way a car travelling in an easterly direction can turn right onto Access Road was with a green arrow from Hoxton Park Road, which would have the effect of stopping the traffic heading west along Hoxton Park Road and also stopping the traffic in the T-way heading east by showing a red B sign.

The evidence in the District Court

1. The following summaries of evidence before the primary judge do not include the evidence in the trial relating to the injuries the respondent suffered in the accident as quantum is not in issue on appeal.

The respondent's evidence

1. The respondent gave evidence that at the time of the accident, he was employed with Transit Systems Australia which provided around the clock diesel repair support for transit systems. He had started work at about 5am which was the morning shift. The morning shift was from 5am to 2pm.
2. At about 1:30pm, he was told to proceed to the Liverpool Interchange to perform diesel work on a bus. He drove on Hoxton Park Road which went to Liverpool. As he approached the intersection of Hoxton Park Road and Access Road, he observed the traffic lights. When asked what he observed about the traffic lights, he replied: [1] Traffic lights and a white "B", which gives right-of-way for the buses, and a red arrow.
3. He then proceeded through the intersection on the T-way, at which point he collided with the appellant's car.
4. Following the collision, he was taken by ambulance to Liverpool Hospital. He remained in hospital for approximately three or four days and was informed he had suffered a fracture to his C2 vertebrae.
5. He recalled that the mother and brother of the appellant came to see him in the hospital ward. They came to the left-hand side of the bed. He recalled the brother saying words to the effect of: "it could've been worse if [I] didn't grab the steering wheel". [2] He did not recall the brother saying anything else. The respondent did not say anything to either of them.
6. In cross-examination, the respondent agreed that, for the collision to have occurred in the way he described, the appellant would have had to turn right into the T-way against a red arrow, and that she would have "found herself in the westbound lane of Hoxton Park Road in conflict with traffic that was heading west on Hoxton Park Road", that is, she would have had to turn into potentially oncoming traffic both in the T-way and the opposite side of the road. [3]
7. The respondent rejected the proposition that he "made a mistake about what the traffic lights were permitting [him] to do". [4] He further rejected the suggestion that he was tired at the time of the collision having worked a nine-hour shift. The respondent denied that he had apologised to Mr Halwagy for the accident. [5]

Mrs Zamagias' evidence

1. The respondent's mother, Mrs Joanne Zamagias, gave evidence that on the night of the accident she and her husband visited their son at Liverpool Hospital. She said that the appellant's mother and Mr Halwagy came in to see how the respondent was. When asked, "did they say anything to you", Mrs Zamagias replied: They come in and see how is Billy. She say "How is he?" I said, "In the moment, it's not very good - wouldn't know". And then the mother say and the brother say, "Probably worse if I'm not - taking the steering wheel. Probably worse". [6]
2. Mrs Zamagias' evidence was that the respondent said nothing at all during that conversation.
3. In cross-examination, she described her son not talking because he was not allowed to move. She denied that the respondent said to Mr Halwagy words to the effect, "Sorry about the accident". [7]

The statements made to Constable Benitez

1. Constable Carlos Benitez attended the scene of the accident on 22 May 2018. He did not give evidence before the primary judge. A digitally recorded interview between an insurance investigator and the police constable on 28 June 2019 was tendered. During the interview, Constable Benitez read onto the record statements from the appellant, the respondent and Mr Halwagy which were recorded in his police notebook.
2. The statement of the appellant taken by Constable Benitez on 27 May 2018 was as follows: So, the [appellant's] version was obtained on Sunday the 27th of the 5th, 2018. It's - start with my question. "About 2:40am [sic] on Tuesday the 22nd of May 2018, at the intersection of Hoxton Park Road and Access Road, Cartwright, were you, Antonette Holloway [sic], the driver of vehicle registration [blocked out], involved in a collision with a motor vehicle, registration [blocked out]?" The answer was, "Yes". Question: "Tell me what happened". Answer: "I was - I was driving on Hoxton Park Road. My brother was my passenger. On the intersection of Access Road, I stopped on the red light. I was on the right-turn lane. I was talking to my brother, Gabriel, about my fiancé losing his job. After a few seconds, Gabriel gave me a nudge with his elbow and said, "Lights are green". I started turning, keeping an eye out on the driver's side corner of my car. As I was turning, I heard Gabriel say, "Shit!" as he grabbed me and pulled me towards him. A split-second later, I heard a bang and see a car flipping." Question: "I'm going to ask you further questions. You don't have to do or say anything. Anything you do or say will be recorded and used as evidence in court. Do you understand that?" Answer: "Yes". Question: "Did you check what colour the traffic light was?" Answer: "Yes." Question: "What did you see?" Answer: "Green solid to go straight, green arrow to go right, and a red B." Question: "Did you check or right [sic] before starting to turn?" Answer: "To my right. Yes." Question: "What did you see?" Answer: "Opposite, a car stopped, Red Rooster and Peppers [sic]." Question: "Did you look towards the T-way?" Answer: "No." "Behind?" "No." Question: "Is it fair to say that [you] weren't paying attention on the road?" Answer: "No. I was talking to my brother, but when the car started to turn, I was paying full attention."
3. The statement of Gabriel Halwagy taken by Constable Benitez on 27 May 2018 was as follows: So, on My [sic] the 27th - on the 27th of May 2018, Gabriel Halwagy made a statement. Stated that he was the - he was there, seated on the front passenger seat of vehicle one. As the traffic arrow turned green on vehicle one, started - vehicle one started turning. Gabriel saw a white van travelling at speed towards vehicle one. As a result, Gabriel Holloway [sic] placed his right arm around driver one in attempt to protect the driver. And, which - and with his left hand, took hold of the steering wheel and turned it left. Gabriel states the front nearside wheel of vehicle two collided with the front of - side of vehicle one. As a result of the collision, vehicle two rolled two or three times and came to a rest on its roof. On - early in June 2018, police received blood alcohol certifications for both drivers with negative results.
4. The statement of the respondent taken by Constable Benitez on 13 November 2018 was as follows: So, this was taken on Tuesday the 13th of the 11th, 2018. "I am Constable Benitez, attached to the Green Valley Police Station. About 2:35pm on the 27th of May 2018, at - at the intersection of Hoxton Park Road and Access Road, Cartwright, were you the driver of a motor vehicle, registration [blocked out] … involved in a collision with motor vehicle [blocked out] …?" Answer: "I was in the white van." Question: "Tell me what happened." Answer: "I was driving along the T-way towards Liverpool. As I reached the intersection, I saw a traffic light showing a white B, giving me right of way. As I was on the intersection, I saw, from my left, the refuel. I saw a little white car turning onto my path. I swerved to avoid it. No time - no time to hit the brakes. Then I felt a hit on the side of the van, and I - and I braced myself. The van started flipping."

The COPS entry

1. A record from the NSW Police Force's Computerised Operational Policing System (COPS) database created on 19 June 2018 states the following: On 27 May 2018, Antoinette Halwagy [the appellant] … attended Green Valley Police Station and provided a drivers version and a statement in regards to the motor vehicle accident. DRI-1, Antoinette Halwagy, stated on her version that she was parked and made a right turn onto Access Road when indicated by the traffic light. Prior to making the right turn she checked the traffic light which showed a green solid to go straight, green arrow to turn right and a red "B". DRI-1 proceeded by looking towards Access Road and saw cars stopped as well as the Red Rooster store and the Pepe's [sic] sign. When asked by police, DRI-1 stated that she did not look towards the T-Way which is also located to her right.

The appellant's evidence

1. The appellant's account of what she did prior to the collision is advanced in the following evidence that she gave in examination-in-chief: [8] Q: When you approached the lights, what did you do? A: Stopped at the lights. … Q: What caused you to stop? A: The lights were red. … the lights that's furthest to the left indicates for the straight, so going ahead. They were green. Then the lights in the middle, from memory, is - it has the lights to go straight and the lights to turn right, the arrows to turn right, the arrow to turn right. And then the next set of lights is the bus lane lights. So, my lights to turn right was red, but to go straight was green, and we were stopped at those lights because it was red. I was the first car at the intersection. Stopped there for a few moments, and then once they turned green, I looked left and right and that's when I proceeded to turn right. Q: Whilst you were stopped at the intersection, what were you doing? A: Talking to my brother about my fiancé at the time wanting to quit his job. Q: Do you recall how long you were waiting at the lights? A: A few moments. No longer than a minute. Q: What then happened? A: So, the lights turned green, which meant the bus lane turned red. It wasn't - the B wasn't white anymore. And then I looked left and right as what I would normally do at an intersection, started turning right and then the crash just happened. … Q: At that particular time, did you make any observations about the traffic coming in the opposite direction? A: They were all stopped, the traffic. So, the cars that were on the opposite direction were all stationary. … Q: When you were having that conversation with your brother, was anything said when the lights turned green? A: He's like, "We can go". And I looked, I'm like, "Sorry we're just so into the conversation of my husband quitting just before getting married". Q: So, you started to turn right? A: Right. Yes. Q: What did you then experience? A: So, basically once we turned, right, my brother called out, "Shit". And then as soon as the impact happened, my eyes just locked on the window being cracked. And then we were steering to the left so we don't end up underneath the van, because the van was flipping. Q: When you said "we were steering" - A: Yes. So, I was holding it with both hands, trying to veer the car to the left, but if you see the pictures of the impact - Q: But what was your brother doing at the time? A: He tried to assist me to pull it to the left as well, because the car got stuck veering to the right. … Q: Having regard to that intersection, in your experience are there any occasions when you can turn right when the light doesn't show a green filter arrow? A: No. It has to always show the green arrow. It does not black out.
2. In cross-examination, the appellant recounted that she was discharged from hospital on the night of the accident and voluntarily went to the police station on the following day and told her side of the story. She was unable to agree or disagree that she had given her statement to Constable Benitez on 27 May 2018. She said she was not charged by police. Her account of what occurred at the intersection was challenged by the respondent's counsel in the following exchange: [9] Q: What can then happen after getting a red round and a red arrow is that the red round can turn into a green round. That's correct, isn't it? A: Yes. Q: What I want to suggest to you is that on the day of the accident when you approached the intersection, you had both a red round and a red arrow. A: No, it was a green round to go straight, and it was a red arrow to turn right. That's why I was stopped at the intersection while the cars on my left-hand side were continued driving. … I stopped because my red arrow light to turn right was red, and the solid circle was green to go straight. That's why I had stopped. Q: What I suggest to you is that whilst waiting there, the only thing that caused you to turn right was being nudged by your brother to say that the light had turned green. A: No, I looked up, the lights turned green, the oncoming traffic on the opposite side … they stopped at those lights - were red. I looked left and right as I normally do at the intersections, and then I proceeded driving right.
3. The appellant denied that the only thing that caused her to turn right was her brother's prompt, and further denied that she "did not see the light turn green". [10]
4. On the topic of being distracted, the appellant gave the following evidence in cross-examination: [11] Q: If I want to suggest to you that, in fact, it was more than that and that you actually told the police officer, Benitez, that your husband actually was losing his job. A: No, he was not losing his job. Q: What I want to suggest to you was that in that conversation with your brother, you became distracted. A: No. Not at all. Not at all. Q: You became distracted and then he nudged you and said "You've got the lights", and then you immediately began to turn right. A: I did not immediately begin to turn right. I literally looked up, looked at my arrow, was green, and then I proceeded to turn.
5. The appellant was cross-examined about her brother's actions. On this topic the appellant's evidence included the following: [12] Q: During the course of the collision, your brother grabbed the wheel of the car and steered it away. Is that correct? A: He was, like, holding me cause I remember he was trying to protect me as his sister. And he was helping me also - Q: Steer the wheel? A: - pull. Steer the wheel, holding me, I - I'm literally in - in the middle of a shock that I had an accident. But I do recall trying to pull the car to the left because I didn't want to end up underneath the van. Q: And he was helping you pull the car to the left? A: He was holding me. I can't - like I said, I can't tell you exactly - it was five years ago - whether or not he was physically holding me or the wheel. But he was next to me, and he was protecting his sister.
6. She confirmed that her memory of the phasing of the lights and the events leading up to the crash was "perfect". [13]

Mr Halwagy's evidence

1. The appellant's brother, Mr Gabriel Halwagy, who was the passenger in the front seat of the car driven by the appellant, gave evidence that as they approached the intersection with Access Road, the round light for ongoing traffic was green and "our one came to a red light" so they stopped at the intersection to turn right. [14]
2. He said he was chatting with his sister at the time "about her husband's workstyle". When asked whether something happened to the traffic lights, he replied: [15] A: Yep, as I turned up, I've seen that the traffic lights - go green. And I nudged my sister, and she pretty much went ahead with it. And as we were turning right into Pep's Autos, I've seen on the corner of my eye that there was a van coming on the T-way intersection. And he pretty much just knocked over the righthand side, and as then I was grabbing my sister, and my lefthand side was turning the lefthand side of the steering wheel trying to steer away.
3. Mr Halwagy gave evidence that the traffic on the other side of the intersection was at a standstill.
4. He said that, on the night of the accident, he "[took] it upon [himself] to go and see how the other driver was". [16] In the hospital, Mr Halwagy said the respondent "apologised to him", and said "everything was all good" and words to the effect of "I'm sorry, mate, for what happened". [17]
5. It was suggested in cross-examination that this conversation was a recent invention. [18] Mr Halwagy agreed that he did not tell the police about the apology when interviewed on 27 May 2018. He explained that he did not do so "because I wouldn't think it would be relevant for me to tell him that, and it was nothing to do with the crash at the time of the accident". [19]
6. On the topic of talking to his sister and nudging her, he gave the following evidence in cross-examination: [20] Q: You were talking about her husband. A: Yep. Q: His job situation. A: Yep. Q: What you say then is your sister began to do a right-hand turn once she got the arrow. Is that correct? A: Once I did tell her that the arrow did go green. … Q: Your sister then began to turn right? Is that correct? A: Not immediately, no, because I nudged her and I told her, "Look, the green's -" like, the light went green and that's when she started turning right. Q: And that's when it happened, the accident, after you nudged her and she started turning right, correct. A: Well, if you say so, yeah.
7. And further: [21] Q: What I want to suggest to you is, in fact, you had a red round, and you had a red arrow. Do you agree with that or disagree with that? A: I disagree with that. Q: Furthermore, what I suggest to you is that you did give your sister a nudge, and say the lights turned green. A: Yep. Q: But you'd been confused and you'd actually seen the round light turn green, and as a result of that, your sister began to take the turn without looking at the light. A: Sorry, as I mentioned again, the red round - the red round was green and the red - the arrow was red at the time. And when I did nudge her, the arrow turned green and the round was still green. Q: So you reject the proposition I put to you that there was a red round, there was a red arrow. A: I object, yes. Q: I want to also suggest to you that when you nudged her, you'd been mistaken and you'd only seen the round green whilst there was still a red arrow. You disagree with that? A: I disagree with that.

The reasons of the primary judge

1. The primary judge did not accept Mr Halwagy's account of the respondent apologising for the accident. Her Honour accepted the respondent's and his mother's evidence that the respondent gave no reply to what Mr Halwagy had said. Her Honour went on to say: [47] Counsel for the Plaintiff argued that if it was found that this conversation did not take place, it renders the whole of Mr Halwagy's evidence unreliable, and I would, therefore, not accept his account of how the accident occurred. I do not accept that submission. Mr Halwagy's evidence in other respects is broadly consistent with his sister's account and their accounts to the police shortly after the accident. That I do not accept the conversation occurred does not, in my view, render the balance of his evidence unreliable.
2. The primary judge noted that the respondent denied he was tired when driving to the Liverpool bus depot because it was the end of his shift and observed there was no evidence to suggest that he was. Her Honour noted it was not suggested to the respondent that he was speeding or distracted when he drove through the intersection with the white "B" light.
3. The primary judge did not accept the evidence of the appellant and Mr Halwagy as to how the accident happened. Her Honour said: [51] While the Defendant said in her evidence that when her brother nudged her and told her the light was green, she looked left, right and in that time observed that the cars travelling west on Hoxton Park Road were stopped, and that while she could not remember her brother taking hold of the steering wheel, her recollection of the phasing of the lights was "perfect", it is clear from her statements that the perfection of her recollection accrued over time. However, in my view, the probability is that she is incorrect. [52] I regard the statements of the Defendant and her brother made immediately after the accident to be a more accurate reflection of what happened, and importantly, her answer to the police officer that she did not look at the T-way light when she started to turn. [53] I am satisfied that it is more probable that the Defendant's conversation with her brother caused her to be distracted while waiting for the light to turn green, and that she turned right when nudged by her brother, turned in error, not seeing that the arrow remained red.
4. The primary judge found that the respondent did not travel through the intersection against the red "B" light and was not responsible for the accident. Her Honour said: [55] It follows that I find it is more probable than not that the accident occurred through the Defendant and her brother being distracted, and she turning right on his mistaken view that the right hand turn was green and turned in front of the Plaintiff's van that had right of way. The Defendant thus failed to pay proper regard to the traffic signal and breached her duty of care to the Plaintiff, which was the cause of the accident.

Appeal

1. By notice of appeal, the appellant advances seven grounds of appeal: 1. The primary judge erred in finding that the appellant turned right against a red arrow. 2. The primary judge erred in making findings that were not available on the evidence or which were contradicted by evidence which was irrefutably established. 3. The primary judge failed to provide any or any adequate reasons for the findings which were pivotal to her decision including the ultimate finding that the arrow facing the appellant was red. 4. The primary judge erred in her conclusion that the accident occurred by reason of the appellant and her brother having been distracted and her turning right on his mistaken view that the right-hand turn arrow was green and had turned in front of the respondent's van that had the right of way (J[55]). 5. The primary judge erred in her finding that the respondent did not travel through the intersection against the red B-light and was not, therefore, responsible for the accident (J[54]). 6. The primary judge erred by failing to consider or to have any or any adequate regard to the uncontradicted evidence which proved the phasing of the traffic lights, which evidence established that: 1. for the respondent to have a white B signal, the traffic travelling in the same direction as the respondent on Hoxton Park Road must have a green round signal, and those turning right must have had a red arrow; 2. based on the uncontradicted evidence of both the appellant and her brother that the vehicles which had been travelling in the opposite direction on Hoxton Park Road in opposing lanes were stopped, the light phasing only permits this to occur when: 1. the appellant has a green right-turn arrow; or 2. vehicles travelling in the street into which the appellant [turned] intending to turn right into Hoxton Park Road have a green signal which permits them to turn right onto Hoxton Park Road (across and in front of the appellant and the T-Way lane).
2. Neither circumstance described in (a) or (b) above permit a white B signal for the respondent in the T-Way. 1. The primary judge failed to have any or any adequate regard to the evidence that the respondent: 1. gave his first account of the accident to the police about the circumstances of the accident more than four months after the accident after he had returned from Greece; and 2. had arrived at work before 5:00 am on that day, and had been working for at least 9 hours before the subject accident, which the appellant contended suggested that he was tired at the time of the accident and consequently made a mistake as to what the traffic lights displayed as he approached the intersection.

Notice of contention

1. The respondent filed a notice of contention, which states: 1. The primary judge when rejecting the evidence of Mr Halwagy as to the purported conversation (apology) by the respondent did not occur, but this did not render the balance of his evidence unreliable, [ought] to have found: 1. the balance of his evidence was unreliable; and/or 2. the evidence of the purported apology was given because Mr Halwagy had formed the view that the accident was caused by the appellant when she drove her vehicle contrary to a red traffic arrow.

Appellant's submissions

1. The appellant's submission that the primary judge erred in finding that she had turned right against a red arrow focused on her Honour's reasons at J[51] to J[53], quoted at [53] above. The appellant submitted that an examination of the accounts given by the appellant and Mr Halwagy to the police officer incontrovertibly supported the appellant's version of events, including her oral testimony.
2. The appellant contended that the primary judge misdirected herself as to the importance and effect of the evidence of the statements recorded in the police notebook and mistakenly formed the view that the appellant had not told the police officer that she looked at the T-way light before she started the turn. It was pointed out that the appellant's statement to the police officer also included that she observed stationary vehicles in the opposing westbound lanes. The appellant referred to her answer in cross-examination that she observed the traffic in the opposite direction were all stopped and stationary.
3. It was submitted that in contradistinction to the primary judge's reasons, the appellant's early account was entirely consistent where she described that the lights she observed when approaching the intersection as being green. This description of the lights was consistent with phase "A" of the traffic signals. The respondent contended that the operative phase when she commenced her turn was phase "B" without pedestrian involvement.
4. The appellant submitted that the primary judge's decision was "irremediably flawed".
5. A further argument was that a second erroneous finding arises from the primary judge's satisfaction that the appellant's conversation caused her to be distracted and she turned right in error when nudged by her brother.
6. The appellant submitted that the respondent's counsel's argument at trial that the appellant and Mr Halwagy mistook the red eastbound lane round light changing from red to green for the red turning arrow turning red to green had no basis. The appellant argued that if there was an eastbound red round light and it changed to green (after 12 seconds), the right-turn arrow would already have been green and would continue to be green when the red round light changed to green.
7. A further argument was that the primary judge did not engage with the evidence of the appellant or Mr Halwagy to the effect that the vehicles on the opposite side of Hoxton Park Road were at a standstill (consistent with a green arrow being displayed to the appellant).
8. The appellant contended that the primary judge ought to have found that the respondent had disobeyed a red "B" signal and had caused the accident, or alternatively found that the respondent had not discharged his onus of proving that the appellant had breached her duty of care.
9. In oral submissions, Mr O'Dowd, the appellant's counsel, told this Court that the appellant did not cavil with the proposition that Mr Halwagy let the appellant know that the arrow had turned green, but the appellant looked up and saw the green arrow and red "B" light. Mr O'Dowd was critical of the emphasis being placed on the nudge and the appellant starting her turn without looking at the lights.
10. Mr O'Dowd, who also was the appellant's counsel in the hearing before the primary judge, accepted that the respondent was not cross-examined at all about his speed. He accepted there was no evidence at all of the speed that the respondent was travelling. Mr O'Dowd also accepted there was no cross-examination of the respondent as to his distance from the traffic lights when he first saw the white "B" signal. Mr O'Dowd pointed out that the appellant did not bear the onus of proof.
11. Another submission made by Mr O'Dowd was that the appellant's first account of the accident was given either four or five days afterwards whereas the respondent's first account was given some six months later, after he had returned from his holiday in Greece.

Respondent's submissions

1. The respondent submitted that a likely scenario was that the appellant had come to a stop during the "C" phase and then when "A" phase commenced, her passenger observed the green round signal and she commenced driving without observing the red arrow. In the alternative, the appellant was distracted during the "A" phase and looked up and saw a green round signal and proceeded while there was a red arrow.
2. The respondent pointed out that in the "A" phase, if there has been pedestrian demand from pushbutton post 10, then a left red arrow would be displayed for westbound traffic for 6 seconds, or if pushbutton post 11 was activated, then the traffic would be held for a period of 12 seconds. This meant that traffic would be held in the right-hand lane opposite the Red Rooster store and Pep's Auto Spares store.
3. The respondent referred to inconsistencies in the accounts given by the appellant and Mr Halwagy in their evidence and their statements given to police. The respondent contended that the observation of the vehicles being stationary (if that be correct at all) was of a car stopped at Red Rooster and Pep's Auto Spares. This was consistent with vehicles in the left-hand turn lane on Hoxton Park Road being stationary before attempting to turn into Access Road.
4. The respondent argued that the appellant's submissions ignored the fundamental proposition that the primary judge accepted the respondent's version of events. Furthermore, the submissions ignored the basic finding that the appellant was inattentive.
5. In oral submissions, Mr Dooley SC for the respondent agreed that the appellant's case was that the traffic signals turned from phase "A" to phase "B", whereas the respondent's case was phase "C" to phase "A". Mr Dooley helpfully provided this Court with a colour-coded aide memoir depicting the phasing of the traffic lights.
6. As to the findings made by the primary judge adverse to the appellant, Mr Dooley described these findings as "a little in error". [22]

Consideration

1. Having reviewed the evidence given in the District Court and the reasons of the primary judge, it is plain that her Honour's reasons for not accepting the evidence of the appellant and Mr Halwagy as to how the accident happened amount to an error of fact. Her Honour at J[52] regards "the statements of the Defendant and her brother made immediately after the accident to be a more accurate reflection of what happened, and more importantly her answer to the police officer that she did not look at the T-way light when she started to turn".
2. The primary judge detailed at J[20]-[27] the appellant's account to Constable Benitez on 27 May 2018. As there were no statements in evidence made to police "immediately after the accident", her Honour was undoubtedly referring to the statements taken by Constable Benitez which I have quoted at [34]-[36] above. In the appellant's statement, the following appears: Q: Did you check what colour the traffic light was? A: Yes. Q: What did you see? A: Green solid to go straight, green arrow to go right, and a red "B".
3. The primary judge had summarised this part of the statement at J[24]: The officer asked the Defendant whether she checked the colour of the traffic light and the Defendant said, "Yes," and added that it was green to go straight ahead, a green arrow and the B light was red.
4. Contrary to what was stated by the primary judge at J[52], the appellant told the police that she looked at the traffic light when she started to turn. The primary judge was plainly aware of the answers the appellant gave to the police officer. It is difficult to understand how this evidence appears to have been overlooked in the conclusion that her Honour reached.
5. In Mr Halwagy's statement taken by Constable Benitez, the following appears: As the traffic arrow turned green on vehicle one, started - vehicle one started turning.
6. The testimony of the appellant and Mr Halwagy before the primary judge was essentially consistent with the statements taken by Constable Benitez. There was no factual basis for drawing a distinction between their evidence in court and their police statements. Her Honour's factual error was material and affected the conclusion that she reached.
7. Whilst I am mindful of the restraint on appellate interference in a trial judge's finding of fact based on credibility of witnesses, her Honour's factual error falls within the category identified in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [29] as involving a finding contrary to incontrovertible facts.
8. Grounds 2 and 3 of the appeal are established. It is unnecessary to reach a conclusion on the remaining grounds in which the assertions of error are far from clear.
9. There is no merit in the respondent's Notice of Contention. It was open to her Honour to conclude that, even though she did not accept Mr Halwagy's account of the respondent's apology, the balance of his evidence was not rendered unreliable.
10. There are now two courses open to this Court. Either this Court reaches its own conclusion on liability upon a review of the whole of the evidence, or the matter should be remitted for a retrial in the District Court on liability only.

Should the matter be remitted to the District Court?

1. In Fox v Percy, the plurality (Gleeson CJ, Gummow and Kirby JJ) emphasised the desirability of an appellate court finalising a matter. Their Honours said at [29]: In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process. (Footnotes omitted)
2. However, the plurality recognised that there will be occasions when matters of credibility are critical. Their Honours observed at [31]: Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical. (Footnotes omitted)
3. In Mastronardi v State of New South Wales [2007] NSWCA 54, the matter was remitted for a new trial in the District Court. The primary judge had made a number of factual errors in reaching the conclusion that he could not be satisfied of the accuracy and truth of the evidence given by the plaintiff. Basten JA (Ipp and Campbell JJA agreeing) said at [81]: Given the requirement under [Supreme Court Rules 1970 (NSW)] Pt 51 r 23 for a court to be affirmatively satisfied that "some substantial wrong or miscarriage" has been occasioned, it is possible that a different result could obtain in demeanour-based assessments where the appellate court discerns error, but is unable to say whether a correct assessment could or would have led to a different result. That is precisely the kind of case where a new trial is a relevant option. It would mean that a new trial could rarely be obtained if the question of injustice is to be assessed by reference to the ultimate outcome of the case.
4. In Lichaa v Boutros [2021] NSWCA 322, an appeal was upheld and the matter was remitted for a new trial in the District Court. Rein J (Macfarlan and Gleeson JJA agreeing) held that the primary judge's reasons for rejecting the appellant's claim in respect of defects failed to adequately explain why the primary judge rejected the expert evidence called by the appellant or preferred the expert evidence called by the respondent. Rein J said at [57]-[58]: Counsel for Ms Lichaa conceded that if the Court accepts the inadequate reasons ground then it would be difficult for this Court to itself determine the outcome … Rule 51.53 of the UCPR provides that the Court must not order a new trial on any ground "unless it appears to the Court that some substantial wrong or miscarriage has been thereby occasioned". Neither party suggested that r 51.53 was in its terms inapplicable to an appeal from a District Court judge sitting without a jury: cf the doubts expressed by Kirby and Callinan JJ in Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 at [53]; Mastronardi v State of New South Wales [2007] NSWCA 54 at [74]-[75]. I am persuaded that a substantial wrong or miscarriage has occurred and the judgment under appeal ought be set aside and the matter referred back to the District Court for a rehearing.
5. Mr O'Dowd, in oral submissions, invited this Court to form its own view whereas Mr Dooley submitted that if this Court concluded that the ultimate result depended upon findings of credibility and reliability, then the matter should be remitted preferably before a different judge.
6. In the present case, there is no objective evidence which renders either the case for the appellant or the case for the respondent to be glaringly improbable or fanciful. If this was the case, such as it was with the skid marks in Fox v Percy, I would have no difficulty reaching a conclusion on the transcript.
7. The parties' arguments about the phasing of the traffic signals do not provide objective support for either case. Any combination of the sequential operation of the traffic signals was possible.
8. My analysis of the respective cases of the parties on the transcript is that they are evenly balanced. I am unable to determine where the truth lies on the transcript alone. The respondent's evidence was that he drove through the intersection with the white "B" light. As the primary judge observed at J[48]: The [respondent] denied he was tired when driving to the Liverpool bus depot because it was at the end of his shift, and there is no evidence to suggest that he was. It was not suggested that he was speeding or that he was distracted by anything going on around him.
9. On the other hand, the appellant's evidence, which is supported by Mr Halwagy, was that she commenced her turn when she saw the right-hand arrow turn green and a red "B". Although the appellant and Mr Halwagy gave evidence of cars being stationary on the opposite side of the road, neither of them gave evidence of the lane or lanes that those cars were in. Their evidence of the stationary cars could be consistent with phase "A" with pedestrian demand activated or phase "B".
10. I have concluded that the nature of the factual dispute is such that it cannot be justly resolved on the transcript. This is a case which will ultimately be determined on findings as to credibility and reliability of witnesses. Whilst a further trial on the issue of liability is unfortunate, the oral evidence will likely be confined to the respondent, his mother, the appellant, and Mr Halwagy. A retrial will not be lengthy.
11. As the parties have had a trial which has been tainted by material factual errors, the case has not been considered according to law. It appears to me that a new trial must be ordered pursuant to Uniform Civil Procedure Rules 2005, r 51.53(1) as a substantial miscarriage has been occasioned.
12. As there was no challenge to the assessment of damages, the retrial should be limited to the issue of liability, with the intent that if such liability is established then the damages assessed by the primary judge should be awarded.

Costs and orders

1. No submissions were made by the parties that there should be any order other than the costs of the appeal should follow the event. I would make that order.
2. The appellant seeks a further order that the respondent pay the appellant's costs of the proceedings before the primary judge. I do not propose to make that order. It is far from certain that the appellant will be successful in the retrial. The costs of the original trial will be in the discretion of the District Court on remitter.
3. The orders I propose are: 1. Appeal allowed. 2. The orders of Ainslie-Wallace ADCJ in the District Court of NSW on 13 December 2023 are set aside. 3. The matter be remitted to the District Court for a retrial on liability only before another judge to be allocated by the Chief Judge of the District Court. 4. Order that the respondent pay the appellant's costs of the appeal.

Endnotes

1. Tcpt, 23 October 2023, p 22.
2. Tcpt, 23 October 2023, pp 41-42.
3. Tcpt, 23 October 2023, p 56.
4. Tcpt, 23 October 2023, p 57.
5. Tcpt, 23 October 2023, p 58.
6. Tcpt, 24 October 2023, p 75.
7. Tcpt, 24 October 2023, pp 75-76.
8. Tcpt, 24 October 2023, pp 79-80.
9. Tcpt, 24 October 2023, pp 85-86.
10. Tcpt, 24 October 2023, p 83.
11. Tcpt, 24 October 2023, p 88.
12. Tcpt, 24 October 2023, p 93.
13. Tcpt, 24 October 2023, p 94.
14. Tcpt, 24 October 2023, p 101.
15. Tcpt, 24 October 2023, p 101.
16. Tcpt, 24 October 2023, p 103.
17. Tcpt, 24 October 2023, pp 103-104.
18. Tcpt, 24 October 2023, pp 104, 107.
19. Tcpt, 24 October 2023, p 107.
20. Tcpt, 24 October 2023, p 109.
21. Tcpt, 24 October 2023, p 111.
22. Tcpt, 1 July 2024, p 30.

Amendments 01 August 2024 - paragraph numbers amended. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 August 2024