Zamagias v Saltalamacchia

Category: Principal judgment

Parties: Billy Zamagias (Plaintiff)
Antoinette Saltalamacchia (Defendant)

Representation: Counsel:
B Dooley SC (Plaintiff)
D O’Dowd (Defendant)
Solicitors:
AJB Stevens Lawyers (Plaintiff)
Hall & Wilcox Lawyers (Defendant)

File Number(s): 2021/00334329

Publication restriction: No

JUDGMENT

1. In these proceedings, the plaintiff, Mr Billy Zamagias, sues the defendant, Ms Antoinette Saltalamacchia, in negligence for damages allegedly arising out of a motor vehicle accident which occurred on 22 May 2018. The defendant denies liability. The case essentially turns on who was responsible for the accident which occurred in which both parties were injured, the plaintiff seemingly much more seriously, with the plaintiff’s motor vehicle flipping onto its roof as a result of the collision.

2. There was originally a final hearing of the matter before Ainslie-Wallace ADCJ in 2023. Her Honour gave judgment on 13 December 2023 in favour of the plaintiff. The defendant appealed, and the Court of Appeal allowed the appeal and set aside the orders made by Ainslie-Wallace ADCJ: Saltalamacchia v Zamagias [2024] NSWCA 184. There was no appeal in relation to the quantum of damages awarded by her Honour. The Court of Appeal ordered that the matter be remitted to this Court “for a retrial on liability only before another judge to be allocated by the Chief Judge of the District Court”.

3. These reasons deal with the question of liability as remitted.

The pleadings

4. The plaintiff commenced the proceedings by Statement of Claim filed on 24 November 2021. In the Statement of Claim, it is pleaded that proceedings are brought pursuant to the Motor Accident Injuries Act 2017 (NSW) (“the Act”). It is pleaded that at all material times the plaintiff was the driver of a white van and the defendant was the driver of a white sedan. It is pleaded that the plaintiff was driving his van on the transit way lane located along the centre of Hoxton Park Road in an easterly direction in the western suburbs of Sydney. It is also pleaded that at the same time the defendant was driving her vehicle on a right-turn lane along Hoxton Park Road in an easterly direction, to the left of the plaintiff. The plaintiff claims that as he approached the intersection of Hoxton Park Road with Access Road, he travelled through the intersection on a white “B” signal which indicated right of way for vehicles travelling along the T-way. He asserts that the defendant made a right hand turn across the intersection striking the rear left side of the plaintiff’s vehicle causing the plaintiff to lose control of the vehicle and causing the vehicle to flip, with the plaintiff suffering injuries.

5. Particulars of negligence are provided as follows:

(a) “Failing to give way to the Plaintiff; (b) Disobeying a traffic control signal; (c) Failing to observe the presence of the Plaintiff on the roadway; (d) Making a right hand turn across the T-way when it was not safe to do so; (e) Failing to keep a proper lookout.”

6. As the remitter only deals with the question of liability, it is unnecessary to go through the details of the plaintiff’s claimed injuries.

7. In a Defence filed on 4 March 2022, the defendant admits the general background facts but states that she was stationary in the right hand turn lane at the intersection of Hoxton Park Road and Access Road and then turned right across the intersection when a green right turn arrow gave her the right to do so.

8. Accordingly, the issue to be determined is whether the plaintiff went through a white “B” light giving him the right of way easterly along Hoxton Park Road with the defendant turning wrongly on a right red signal or, as on the defendant’s version, the defendant turned on a green right signal and the plaintiff went through a red “B” light in the T-way. There was no expert evidence relied on by either party as to liability.

9. The plaintiff, the defendant, the defendant’s brother (who was a passenger in the vehicle at the time of the accident), and the plaintiff’s mother gave oral evidence in the proceedings which will be discussed further below.

10. In addition, documents were tendered together with a video which helpfully showed a motor vehicle approaching the intersection of Hoxton Park Road and Access Road with that vehicle turning right as it is alleged the defendant’s vehicle was attempting to do at the time of the collision (see Exhibit 1). As was stated by Sackville AJA (with whom McColl JA agreed) in Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 at paragraph 54, while film footage is undoubtedly useful, it is important to bear in mind the limitations of such evidence, particularly in relation to perspective and distance with similar warnings being given in relation to photographic evidence. Nonetheless, the film in Exhibit 1 was helpful in understanding the intersection where the accident occurred.

The relevant legislation applicable and general legal principles to be applied in motor accident cases

11. The Act contains limitations in relation to a plaintiff receiving statutory benefits and damages depending on the question of the fault of the injured person. In the present case, the plaintiff claims that the defendant was wholly at fault in the motor vehicle accident. In section 1.4 of the Act, “fault” is defined as meaning negligence or any other tort. Section 3B of the Civil Liability Act 2002 (NSW) deals with what civil liability is excluded from the application of the Civil Liability Act (“CLA”). Under section 3B(1)(e1) of the CLA, it is provided that the provisions of the CLA do not apply to or in respect of civil liability (and awards of damages in those proceedings) in relation to civil liability relating to an award to which Part 4 of the Act applies, except the provisions that section 3B(2) provides apply to motor accidents. Section 3B(2)(a) of the CLA states that inter alia Divisions 1-4 and 8 of Part 1A (Negligence) of the CLA apply to motor accidents under the Act. Section 5 of the CLA states that in Part 1A of the CLA “negligence” means a failure to exercise reasonable care and skill.

12. Although Division 2 of Part 1A of the CLA is headed “Duty of care”, it is clear that it applies in substance to breach of duty of care. Sections 5B and 5C of the CLA provide as follows:

“Division 2 Duty of care

5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless—

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

5C Other principles

In proceedings relating to liability for negligence—

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”

13. It is not in question in the present case between the parties that a duty of care was owed by the defendant to the plaintiff at the time of the accident.

14. In Manley v Alexander [2005] HCA 79; 80 ALJR 413, the majority of the High Court stated as follows at paragraphs 11 to 12:

“11 No doubt the appellant’s attention was drawn to the figure of Mr Turner standing at the side of the road and behaving in a way that suggested that he might act in some way that would require the appellant to respond. But recognising one possible source of danger does not mean that a driver can or must give exclusive attention to that danger. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle’s path.

12 It may readily be accepted that the possibility that someone would be found lying on a roadway like Middleton Beach Road at 4.00 am is properly to be described as remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.”

15. In Marien v Gardiner; Marien v H J Heinz Company Australia Ltd [2013] NSWCA 396, Meagher JA (with whom Macfarlan and Emmett JJA agreed) explained the duty of care owed by the driver of a motor vehicle to users of the roadway in the following terms at paragraphs 33-37:

“33 The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B.

34 The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant’s circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47-48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1).

35 Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], “reasonable attention to all that is happening on and near the roadway that may present a source of danger”. That in turn requires “simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle’s path”.

36 The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.

37 Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the “limits of visibility and control” so as to be able to react to whatever ventures into the vehicle’s path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision.”

16. The principles stated by Meagher JA in Marien v Gardiner have been followed in numerous later cases. As Garling J stated in Le v Brown, Nguyen v Brown; Tran v Brown; Monica v Brown; Huggett v Brown (No.2) [2019] NSWSC 88 at [211]-[213], it is well accepted that a driver of a vehicle has a duty to control the speed and direction of his or her vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events. However, the principle stated in Manley v Alexander, above at [11], was not an absolute one but was dependent on the facts of the particular case. Garling J quoted Tobias AJA in Egan v Mangarelli [2013] NSWCA 413, where Tobias AJA stated that what was required was “reasonable attention” to what is happening on and near the roadway but it did not require guesswork on the part of the driver: see at [140]-[150].

17. In Pietrobelli v Jewell Family Nominees Pty Ltd [2022] NSWSC 660, Walton J undertook a comprehensive analysis of the authorities relating to duty of care and breach of duty at paragraphs 455-499. At paragraph 455, Walton J stated that the CLA governs questions of breach of duty and causation leaving the question of the identification and scope of the duty of care owed a matter to be determined according to common law principles with what constitutes the exercise of reasonable care to depend on the circumstances of a particular case. At paragraph 471, his Honour said the question of breach was governed by section 5B of the CLA.

18. In the present case, the defendant, in controlling her motor vehicle, clearly owed a duty of care to the drivers of other motor vehicles to take reasonable care for their safety having regard to all the circumstances of the case. The standard by which reasonable care is to be measured is an objective and impersonal one to be addressed prospectively and by reference to what a reasonable driver in the defendant’s circumstances would have done, if anything, by way of response to any foreseeable risk of injury or sources of danger to other road users.

19. In the present case, it would clearly be the duty of the defendant to obey the road traffic light signals and to only turn right from Hoxton Park Road onto Access Road when she had a green arrow indicating that she could turn. Whether she had that arrow is the crucial issue to be determined in the present case.

Documents tendered in evidence

Documents tendered by the plaintiff

20. The plaintiff tendered a number of relevant documents in the case. Exhibit A, a tender bundle, included at pages 25 to 30 photographs of the plaintiff’s vehicle at the accident site (showing the vehicle to have flipped onto its roof and having knocked down a traffic signal light (page 26)) and various Google map views of the intersection with Hoxton Park Road in an easterly and a westerly direction. It is accepted that travelling in an easterly direction as the plaintiff and the defendant were, there are two traffic lanes proceeding ahead with a lane to the right for persons turning right into Access Road (as the defendant wished to do). In the middle of Hoxton Park Road were two transit lanes, one going east and one going west, which were used by buses and other transit vehicles. It was not in issue that the plaintiff was entitled to use this lane. The traffic lights for that lane showed an illuminated “B” which could either be white, which indicated that the driver could proceed, amber, which warned a driver to stop, or red, which indicated that the driver should stop in the transit lane. On the other side of the road, heading west on Hoxton Park Road, were similarly three lanes with two lanes going westwards and another lane allowing a person to turn left into Access Road. Traffic from Access Road could pass over Hoxton Park Road to go right travelling eastwards or the left lane from Access Road could turn left to proceed in a westerly direction. There were traffic lights indicating whether traffic could proceed in any direction with various traffic light phases which will be discussed further below.

21. In Exhibit A was an application for personal injury benefits apparently signed by the plaintiff on 23 November 2018, some six months after the accident. The plaintiff describes the accident in these words (page 3, Exhibit A):

“I was travelling along the transit way in a transit systems vehicle. As I proceeded east a car on my left turned right to drive into the driveway of the business complex + hit the side of my vehicle, my car flipped + hit a post + landed on its roof.”

22. The application form indicated that the plaintiff regarded the person he believed “most at fault” to be the defendant. The form indicated that the plaintiff was taken to Liverpool Hospital on the day of the accident, 22 May 2018, and was discharged on 24 May 2018. The form indicated that the plaintiff was a diesel mechanic for Transit Systems at the time of the accident.

23. Of relevance is that this account by the plaintiff was given some six months after the accident.

24. The documents in Exhibit A included, at page 7, a complex document indicating the traffic light display sequence for the various traffic lights. This is said to be the signal design layout of the intersection as at the date of the accident.

25. The solicitors for the plaintiff wrote to Transport for New South Wales concerning the operation of the traffic signals at the intersection on the date of the accident. The phases of the traffic lights at the time were described as follows:

“On the date in question a total of four phases were available to control traffic and their operation was as follows:-

‘A’Phase — A green signal is displayed to east and westbound traffic on Hoxton Park Road. Eastbound traffic is NOT permitted to turn right into Access Road and is held on a right turn red arrow. This phase also displays a white “B” display for east and westbound traffic on the Liverpool — Parramatta Transitway. 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 on 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.

‘B’Phase — A green signal and right turn green arrow are displayed to eastbound traffic on Hoxton Park Road. Pedestrian movement is permitted across the westbound carriageway of Hoxton Park Road extending through the two central bus lanes as well as the eastbound departure carriageway of Hoxton Park Road subject to push button demand. If the second described pedestrian feature has been demanded then this phase will begin with a right turn green arrow only with the eastbound through movement held on a red roundel. The through movement will be held red for a period of 12 seconds after which time the red roundel becomes green. All other movements are held on a red signal.

‘C’Phase — A green signal is displayed to northbound traffic on Access Road.A corresponding left turn green arrow is also displayed to westbound traffic on Hoxton Park Road. Pedestrian movement is permitted across the westbound carriageway extending through the two central bus lanes of Hoxton Park Road subject to push button demand. If the pedestrian feature has been demanded then a left turn red arrow will be displayed to westbound vehicles for a period of 24 seconds at the commencement of the phase after which time the red arrow becomes green. All other movements are held on a red signal.

‘D’Phase - This phase is a repeat of the ‘B’phase movement

The normal sequence of operation is ‘A’Phase followed in turn by ‘B’ and ’C’ Phases. ’D’ Phase is not permitted to run. 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.

I might also mention that this particular set of signals form part of the Liverpool — Parramatta Transitway which gives Transitway Buses priority. Depending on circumstances a Transitway Bus can demand ‘A’ Phase when traveling along Hoxton Park Road and it will run with no regard to the normal operating sequence outlined above.

As these signals are co-ordinated with adjacent sites via the Sydney Co-ordinated Adaptive Traffic System (SCATS), the amount of green time each phase received is subject to a traffic volume need basis which means that the green time allocated to each phase could vary from cycle to cycle. Due to the changing vehicle demand on each approach, the exact amount of green time each phase received on the day in question cannot be determined ,because of the above variables.

Further to this, the range for the cycle is from 42 seconds to 140 seconds and will vary constantly 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.”

26. Extracts from the notebook of the police officer who attended the accident, Constable Carlos Benitez, were part of Exhibit A. Constable Benitez was described from the bar table as being unwell and did not give oral evidence in the course of the hearing. The police notebook included an account of a witness, Mr Steven Howard, who witnessed the accident but could not provide information as to who was at fault.

27. Exhibit A included a diagram from the New South Wales Police COPS database, apparently prepared by Constable Benitez on 25 May 2018. Again, this does not provide assistance as to who was at fault and the collision location in the diagram does not appear to necessarily reflect the photographs in evidence.

28. Also in evidence was the transcript of an interview between an investigator and Constable Benitez where the latter purportedly read out aspects of his notebook. This interview, in general terms, confirmed that the accident was between cars driven by the plaintiff and the defendant with the defendant’s brother being a passenger in the motor vehicle driven by her on the day of the accident. Constable Benitez indicated (page 18) that he arrived at the accident scene about a minute and a half to two minutes after the accident, as he was travelling in the general vicinity. He indicated that the accident took place at the intersection on 22 May 2018 at approximately 2:35pm.

29. It was not in issue at the hearing that the plaintiff was in hospital for a few days before he was discharged. Apparently, a few weeks after the accident, the plaintiff travelled to Greece on a planned holiday. Accordingly, he did not give a statement to Constable Benitez until 13 November 2018, nearly 6 months after the accident.

30. The interview gave the plaintiff’s version of the accident as follows:

“Q54 All the statements.

A54 Okay. I’ll give you the statement from — the version from driver two. Okay. 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.

Q55 CG****1OEQ.

A55 “Involved in a collision with motor vehicle” — blocked out.

Q56 95AMS.

A56 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.” Question: “I’m going to ask you some questions. You do not have to say or do anything you don’t — if you do not want to. Do you understand that?” He answered: “Yes.” “We will record what you say and do. We can use this recording in court. Do you understand that.” He answered: “Yes.” Question: “Did you attend the hospital as a result of the collision?” Answered: “Yes.” Question: “Did you obtain any injuries?” Answer: “Yes. Broke C2 on the neck. Swelling on the head.” Question: “Do you — and, can you provide evidence — medical evidence regarding your injuries?” Answered: “Yes. They’re at Liverpool Hospital.” Question: “Who were you employed by at the time of the accident?” Answer: “Transit Systems Australia.” Question: “Is there anything else you would like to say?” Answer: “All vehicles have a transponder. It assists in changing traffic on T-ways as the vehicles come close.” That’s his version signed at — yeah. At page 105. In regard to the statement by the brother, I do not have the actual statement, but my narrative reflected the statement.” (Plaintiff’s tender bundle Exhibit A page 22).

31. It may accordingly be seen that the plaintiff claimed that as he reached the intersection he saw a traffic light showing a white “B” giving him the right of way and he proceeded into the intersection and struck the defendant’s car.

32. The interview also gave the defendant’s statement which was given some five days after the accident on 27 May 2018 in the following terms:

“Q49 Yeah. If so, can you please read their statements just for the record?

A49 The statement of driver one will be Antonette.

Q50 Yeah. Thank you.

A50 Okay. So, the driver version was obtained on Sunday the 27th of the 5th,, 2018. It’s — start with my question. “About 2:40am 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 95 alpha, Mike, Sierra, involved in a collision with a motor vehicle, registration Charlie, golf, 10, bravo, Quebec?” 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.” 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.” Question: “Were you injured as a result of the collision?” Answer: “Only pain to my back and neck. The doctor final reports say I have a right third toe fracture. But I had — but I had injured that toe four days earlier at work.” Question: “Was Gabriel injured?” Answer: “No. Not that I know of.” Question: “Were you wearing a seatbelt?” “Answer: “Yes.” Question: “Speed of travel?” Answer: “Take off speed. I was the — I was the first one on the lane. Ten kilometres.” Question: “Can you sign the notebook as an accurate record of our conversation?” Answer: “Yes. I injured my toe at work.” She signed on page 97 of my police notebook, and I co-signed it. They did me a new witness, which you — you asked me before.” (Exhibit A, page 21)

33. It will be seen that the defendant asserted that she was talking to her brother and he gave her a nudge with his elbow saying “lights are green” and she looked up and saw a green “solid” to go straight with a green arrow to go right and a red “B” and then proceeded to turn right seeing a car stopped on the opposite side.

34. The defendant’s brother, Gabriel Halwagy also gave a statement on 27 May 2018, some five days after the accident in the following terms:

“Q59 You**’ve — I think we’ve already covered that in the driver version.**

A59 Yeah. Okay. “So, on May the 27th – on the 27th of May 2018, Gabriel Holloway 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 [an] 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.” That’s it.” (Exhibit A, page 23)”

35. See also Exhibit D.

36. Constable Benitez said that due to the lack of evidence and conflicting versions from both drivers, the police were unable to identify the driver at fault and the police investigation was suspended: Exhibit A, page 23 answer A60. No further action was taken.

37. Also in evidence as Exhibit B, were helpful coloured diagrams showing the various phases of the traffic lights. The plaintiff asserted that the lights were shown as in either diagram one or diagram two of Exhibit B showing a red arrow at the time of the collision, whereas the defendant asserted that the lights shown were in phase B/D, being diagram four of Exhibit B, showing a green arrow with a red “B” at the time of the collision thus indicating that the defendant had the right of way and the plaintiff was at fault.

38. Also in evidence was the statement of Mr Halwagy dated 27 May 2018: Exhibit E.

39. Certain transcript of the hearing before Ainslie-Wallace ADCJ was made Exhibit F.

The defendant’s documentary evidence

40. The defendant tendered additional police documents: Exhibit 2.

The oral evidence

The plaintiff

41. The plaintiff, Mr Billy Zamagias, gave oral evidence. His oral evidence was consistent with his case that he proceeded through a white “B” light travelling eastwards on the transit way in Hoxton Park Road which gave him a right of way and thus the defendant must have turned on a red arrow signal.

42. The plaintiff gave evidence that he was born in February 1975 which made him 50 at the time he gave his evidence and 43 as at the date of the accident. He said he was employed by Transit Systems New South Wales as a mechanic with the job of keeping buses on the road and undertaking repairs when necessary. He said that as part of his job he was entitled to drive on the transit lanes of roadways: T28.39. He had a van for the purposes of his work. The plaintiff gave evidence that he started his shift at 5am on the date of the accident and was due to finish at 2pm. He said he was called to go to a job and was on the way to the Liverpool bus exchange to a breakdown at the time of the accident.

43. He gave evidence that he was travelling in the transit way and there were lights specifically for the transit way which were different to the standard traffic lights, with there being an illuminated “B” which when white on a black circle entitled the vehicle to proceed through the intersection. He also indicated that the “B” then went to amber and then red as with a normal traffic signal. The plaintiff stated that the transit light was readily observable to him when he was on the transit way: T30.19.

44. The plaintiff gave evidence that he approached the intersection which was in a 70kph zone at about 65kph and noted that there was a white “B” light showing with a red arrow: T30.32-.44. He could not recall how far prior to the intersection he was able to see that light sequence: T31.5.

45. The plaintiff was shown the video which was Exhibit 1 and he confirmed that it was a video of the approach to the intersection at Hoxton Park Road in question. He was asked again when he first observed the “B” light for the transit way and was unable to recall when: T33.3.

46. The plaintiff gave evidence that a white car turned in front of his vehicle from the left hand side and he swerved without having the time to apply the brakes and felt an impact on the left hand side of his vehicle which caused his vehicle to roll. The plaintiff stated that he was taken to hospital with an injury to his neck and travelled to Greece some two and a half weeks after: T33.37. He gave evidence that he was interviewed by the police but did not talk to police prior to his prearranged Greek holiday but only spoke to police on his return: T33.46.

47. In cross-examination, the plaintiff confirmed that he was very familiar with the intersection: T34.1. It was put to him that at 2pm the traffic was busy on the road at that time and he confirmed that it could be as Hoxton Park Road proceeded out west from Parramatta.

48. The plaintiff agreed that even when his shift started at 5am he liked to get to work early to prepare for the day. He agreed that the accident happened towards the end of his shift. The plaintiff asserted that the accident happened at 1:45pm (T35.44) which is inconsistent with the police account that the accident happened at about 2:35pm. It was put to the plaintiff that he was mistaken that he saw a white “B” and a red arrow and really what he saw was a green round light, a green arrow and a red “B”. He disagreed with this proposition and also rejected the suggestion that he was not paying attention as he approached the intersection and was a “bit tired” as he was at the end of his shift: T37.

49. The plaintiff generally agreed with the proposition that if a vehicle was in the right lane travelling east on Hoxton Park Road and turned right on a red arrow that it would put the vehicle in direct conflict with vehicles travelling on Hoxton Park Road travelling westwards. He accepted that it would place the person’s vehicle into the path of any vehicles travelling in a westward direction on Hoxton Park Road and would be a “ridiculous thing to do”: T38.16-.49.

50. The plaintiff, in answer to a question from the Court, did not recall the traffic density in and around the intersection at the time: T39.6. However, the plaintiff rejected the proposition that when he was a considerable distance from the intersection he saw a white “B” which then turned amber and red when he approached and that the arrow facing him had turned green. He said this was incorrect and he denied failing to pay attention to the light when it had changed: T39-T40.5.

51. There was no re-examination.

52. The plaintiff was a fairly undemonstrative witness, who appeared to give his evidence directly and clearly. In his recollection, Mr Zamagias had a white “B” signal as he approached the intersection which entitled him to proceed easterly in the transit lane. There was nothing to indicate to the Court that he believed he was being anything but truthful in his oral evidence.

Mrs Joanne Zamagias

53. Brief oral evidence was given by the plaintiff’s mother, Mrs Joanne Zamagias. Mrs Zamagias stated that she went to the hospital with her husband after the accident and was aware by this time that her son had been involved in an accident with a female driver who was driving the other car: T49.40.

54. She agreed that two people came over to talk to her who she understood to be the defendant’s mother and brother. She gave evidence that they asked how the plaintiff was. She also gave evidence that the brother said words to the effect that the accident probably could have been worse if the brother had not taken the steering wheel: T50.41. She confirmed that this was the only conversation she had with the defendant’s brother. Mrs Zamagias was not cross-examined in relation to her evidence.

55. Mrs Zamagias in her short evidence appeared to be a straightforward witness of truth and I accept that she had the recollections stated.

Mrs Saltalamacchia

56. Detailed oral evidence was given by Mrs Antoinette Saltalamacchia the defendant in the proceedings. Mrs Saltalamacchia is a married primary school teacher with two young children. She was 24 years of age at the time of the accident on 22 May 2018. She gave evidence that at the time of the accident she was the driver of a VW motorcar and in the car with her was her younger brother, Mr Gabriel Halwagy.

57. The defendant indicated that the accident occurred at about 2pm when she and her brother were travelling by car to an automotive parts business called Pepe’s to pick up some car parts which she had ordered. The defendant indicated that she was familiar with the intersection where the accident occurred as she had been to Pepe’s on numerous occasions to pick up parts as she had several brothers, and her husband was a mechanic: T53.46.

58. The defendant gave evidence of the nature of the intersection consistent with the documents in Exhibit A. She stated that as she approached the intersection to turn right into Access Road there was a solid green light for cars proceeding straight ahead on Hoxton Park Road, but with a red arrow where she wished to turn. She gave evidence that she stopped at the light, was the first car stopped at the intersection and was talking to her brother in relation to her then fiancé’s desire to leave his job: T54.

59. Mrs Saltalamacchia gave evidence that while she was talking with her head slightly turned to the left towards her brother, her brother Gabriel nudged her in the left arm to notify her that the lights had changed and informed her that “the lights were green”: T55.1-.7. The defendant gave evidence that she looked up, saw that the arrow was green, looked to the left and right as she was the first car stopped at the stop and also saw that there was a red “B” for the transit way: T55.11-.23; T56.30. She also gave evidence that she saw that there were “some cars” stationary on the opposite side of the road travelling west on Hoxton Park Road, but she could not recall in which lanes the vehicles were stopped: T55.25-T56.7.

60. The defendant then heard her brother make an exclamation and he grabbed her towards him while also grabbing the steering wheel and pulling it to the left. Virtually immediately after, the defendant said that she saw her windscreen crack and she also began to turn the steering wheel to the left while feeling her car being struck by another vehicle: T56.33-.39.

61. The defendant said that she was trapped in the car as a result of the accident and had a broken toe and an injured right knee. Mrs Saltalamacchia gave evidence that she was taken to hospital and kept overnight and was discharged the next day. She gave evidence in chief that she had a conversation with her brother about the police not taking a statement and she indicated to her brother that they should attend the police station to put down their versions in a statement. She then said she and her brother proceeded to go to the police station and she gave a statement to Constable Benitez.

62. In cross-examination, in general terms Mrs Saltalamacchia proved to be a fairly loquacious witness, who often tended to give longer answers and explanations than was strictly necessary for the purposes of her evidence.

63. She was initially cross-examined by senior counsel for the plaintiff in relation to her use of the phrase “solid green” light in her evidence in chief (see T55.20). The defendant was cross-examined as to whether she had always used that phrase rather than merely a traffic light with the relevant colour.

64. The defendant indicated that she believed she used the word “solid green” in her NRMA claim form and said that she was a teacher and she believed her vocabulary had expanded and she picked up on words used. When asked whether she always referred to lights as being “solid”, if they were not an arrow, she said that she would say so. She appeared to contest the suggestion that she used the word only in order to present her case. It is noted that in her statement set out in Exhibit A at page 21 Mrs Saltalamacchia uses both versions including the phrase “Green solid to go straight”.

65. I do not think much turns on this point as the defendant may have subconsciously altered her language in the course of giving statements to more frequently use the word “solid” before the colour of a light in making a distinction with an arrow. In any case, she is recorded as using the word in her 27 May 2018 statement to police.

66. The defendant confirmed her evidence in chief that she stopped her car at the intersection and that she was the first car in the turning lane. Over a number of questions, she confirmed that she brought her car to a stop just before the white solid line, but in a location such that she could see the line: T63.21. The defendant was unable to give evidence of what part of the plaintiff’s car was struck by her car but stated that the front driver’s side part of her car was struck. She recalled the plaintiff’s van “flipping”: T65.37: T66.12. She stated that she had never previously seen the photo at Exhibit A page 25 before it was shown to her: T66.2.

67. There was extensive cross-examination in relation to the defendant’s brother’s action in placing his arm over her to pull her towards him: T66.42-T669. The defendant said that she felt her brother’s arm on her right side with his arm being placed over her to protect her. She said this was the first time he had ever done that. She was unable to say which arm of the brother was used in this action. The defendant denied that this indicated that she did not have a good recollection of the accident. She stated that she always maintained her control of the car, although her brother pulled the steering wheel to the left in the course of the collision. She said it all happened quickly and she did not ask her brother for help. The defendant denied that she had “panicked” (T69.31) and said she had both hands on the steering wheel at the time with her turning the car to towards the right in undertaking the turn. In the end, the defendant gave evidence that her brother grasped the steering wheel immediately after the collision: T70.42.

68. The defendant was then shown the video which is Exhibit 1 and confirmed that the lights she was looking at when she was stopped at the intersection were the lights in the middle distance: T72.4; .27. She confirmed that she could see the unbroken white line in front of her where she had stopped and was stationary: T75.8. When it was put to the defendant that she had never mentioned that previously, the defendant said that she had never been asked about that: T76.24. She said it was her practice to always stop behind the white line at an intersection so she could actually see it, and denied that she had made that evidence up for the purposes of her testimony: T76.43. I observed the defendant carefully when she gave this evidence, and it appeared to be given truthfully by her.

69. The defendant was cross-examined in relation to her conversation which she said she had with her brother at the lights. She initially denied the proposition that her fiancé wanting to leave his job was of some concern to her: T78.1; T78.38. She said that she expressed the view that her fiancé should not leave his job prior to their forthcoming wedding to join her brother in a position in the construction industry. She said she had no concern in relation to her husband’s employment. Later, she gave evidence that she did have some concern, but it was not a matter which upset her. She agreed that she expressed concern to her brother in a conversation that her fiancé should not leave his job.

70. When it was suggested to the defendant that she went through a red arrow and that was the cause of the collision, she said that she “hundred percent disagreed”: T78.46. She said she stopped at the red arrow at the intersection and only proceeded when the arrow turned green. She said that she denied that she made a mistake as she had looked up and had seen the green arrow. She said she had “no doubt” that the plaintiff was at fault: T79.14.

71. The defendant was cross-examined in extensive detail about the course of her providing a statement to police: T79 and following. The substance of her evidence was that the accident occurred on 22 May 2018, she was discharged from hospital on 23 May 2018 with her foot in a “moon boot”, her birthday was on XX May 2018, and she spoke to her brother about attending the police station to give a statement as she had not been contacted by the police. She said that she gave a statement to police on 27 May 2018, with her brother giving a statement in a separate room on the same occasion. The defendant agreed that at some time she was rung up early in the morning to be told that the police intended to charge her, and she went down to the station with her father. She could not recall whether her brother went as well. This was some time after she had given her statement, but she could not recall when. The defendant indicated that she was not concerned in relation to being charged when she gave a statement on 27 May 2018. The defendant further indicated that she had never received a copy of the statement she had provided.

72. This cross-examination established that the defendant did have some difficulty recalling the dates of her interaction with police in the period after the accident, apart from the fact that she gave a statement to police with her brother on 27 May 2018. The plaintiff denied that she was reconstructing her evidence and said that while she could not remember the dates of all her interactions with the police, she had a good recollection of the accident itself. She denied that she had reconstructed a version of the accident which was one in which she was not responsible: T85.23.

73. It was put to the defendant that she was distracted whilst she was having a conversation with her brother about her fiancé’s employment status and that when her brother nudged her, she turned without looking. The defendant denied this and said that she looked up at the lights and saw that the arrow was green before she turned: T91.31. She denied that she had an “earnest” conversation with her brother in relation to her concerns, and described the conversation as just a “general conversation”: T92.14. The defendant stated that she was “paying attention on the road”: T95.2. She agreed that her brother had identified the danger of the plaintiff’s car before her when he reached across her: T97.38. The defendant emphasised that she looked left and right before she turned as she was the first car at the intersection: T98-T99.15.

74. The defendant was cross-examined in relation to the contents of the police notebook of Constable Benitez which became Exhibit D in the proceedings. She confirmed that she provided a statement to Constable Benitez and signed his notebook. However, Ms Saltalamacchia stated that she was not given a copy and Constable Benitez held the notebook while reading her statement out loud to her: T106.29-.37. The defendant indicated that the notebook was incorrect to the extent that it records that she told Constable Benitez that she was talking to her brother Gabriel about her fiancé “losing his job”: T106.43. The defendant confirmed that other than that one incorrect matter, the statement was true and correct: T108.9.

75. The defendant gave evidence about attending the police station some time after having given her statement on 27 May 2018 at the request of Constable Benitez and following an indication that she may be charged. In the end, after speaking to the police officer, no further statement was taken, and the defendant was not charged either on that occasion or later: T111.32-T112.14.

76. It was put to the defendant by senior counsel for the plaintiff that she only reacted to the nudge from her brother and that the evidence she had given in the first District Court trial was incorrect that she looked at the traffic light. The defendant disagreed and referred to that part of her police statement at Exhibit D page 90 where she said that she saw “green solid to go straight. Green arrow to go right and a red B”: T113.20-.27.

77. It was then put to the defendant that at no stage did she tell Constable Benitez that she looked left and right as in her oral evidence. The defendant by reference to the police notebook at 90-91 stated that the Constable only asked whether she checked right before the turn which she answered in the affirmative and said that had he asked her if she had looked to her left and right she would have responded “yes”: T113.42-T114.14. When it was suggested to the defendant that she had an “ample opportunity” to say that she turned her head to the left and the right, the defendant said that she was not asked in relation to that at the time: T115.26. The defendant denied embellishing her evidence in the former District Court trial to the effect that she looked to the left and right and further rejected the suggestion that she was being pedantic about the words used to “mislead the Court about the level of [her] observations at the time of the accident”: T115.34-T116.20.

78. The defendant was taken to the absence from her police statement of any suggestion that her brother Gabriel had taken hold of the steering wheel. She accepted that it was not included in the police statement: T118.1-.4. The defendant explained this by the fact that the questioning was done by the Constable, and she answered it in a particular way without other questions being asked to elaborate further: T118.6-.16. The defendant asserted that in the police statement her “elaboration of the story was cut” whereas in court she gave greater detail: T118.42.

79. The defendant said she had both hands on the steering well when her brother intervened: T119.25. She denied the assertion that she was not in control of the car and her brother took total control of the car at or about the time of the collision: T119.33. The defendant further denied that it was a fabrication that she looked up after being nudged and saw the green arrow to turn right and then looked to her left and right before proceeding to turn right: T119.39-.48.

80. The defendant was then asked questions about that part of her statement which said “What did you see. Opposite car stopped Red Rooster & Pepes”. The defendant said the car was stopped on the opposite side of the traffic heading westbound but stated that she could have said “cars” stopped: T120.3. The defendant asserted that the vehicle was stopped going westbound: T120.25-.30. She then stated “on the opposite side the cars were stopped”: T120.34. The defendant asserted that she told the police officer “opposite cars stopped”, suggesting more than one car: T120.37; see also T121.45. The defendant asserted an actual recollection of cars driving in the westerly direction and in the easterly direction: T122.30. The defendant stated that she told Constable Benitez that “cars” were stopped (T125.16-.23) and it was incorrectly recorded as “car stopped” by the Constable. In the end, the defendant confirmed her recollection that she saw the arrow to turn right, looked to her left and right, saw that cars were stopped and then proceeded to turn: T125.33.

81. The defendant was then asked questions about her 2019 statement to an insurance company investigator. She confirmed her account as to what she had done which was in general terms consistent with her evidence given orally: T126.31. The defendant accepted that she did not recall recording in that statement that she was nudged by her brother. She denied the suggestion that she was distracted: T126.34-T127.17. Similarly, the defendant conceded that in her 2019 statement, she did not include the part about her brother taking the steering wheel and said it was possibly because she was not asked in relation to the matter. She said that she told the investigator “a brief story”: T127.21. The defendant also said she did not include anything about the topic of her discussion with her brother about her fiancé’s job while they were stationary at the traffic lights: T128.13. She said she was not asked by the investigator anything about what the “chat” was about. The defendant denied that by May 2019 when she was interviewed by the insurance investigator that her recollection of the accident had deteriorated. She said she simply answered the questions that were asked of her: T128.28-.36; see also T129.37.

82. In re-examination, the defendant confirmed that she had cooperated with her insurance company to come to the previous trial and the current hearing and that she had nothing to gain from coming along to court or to mislead the Court. The defendant said she had been honest with the Court with respect to every answer she had given: T131.32.

Gabriel Halwagy

83. Oral evidence was given by Mr Gabriel Halwagy, the brother of the defendant, who was present in the defendant’s motor vehicle at the time of the collision. He confirmed that he was travelling with his sister at the time on 22 May 2018 to Pepe’s Auto Spares eastwards on Hoxton Park Road. He had attended there many times as at 2018: T134.2. Mr Halwagy confirmed that at the time of the accident he had driven with his sister very often and described her as being very cautious and “very aware” and taking real concern when she drove around: T134.19-.30.

84. Mr Halwagy said that his sister’s vehicle stopped at a red arrow and they were at the front of the intersection and were stationary: T134.32-.43. He then gave evidence in relation to the discussion concerning his sister’s fiancé’s job. Mr Halwagy stated that the cars on the opposite side of Hoxton Park Road were stationary heading towards Hoxton Park when the light near him turned green as there was a green arrow. He gave evidence that he nudged his sister and told her it was a green arrow to go ahead and observed that “before she continued she checked around her surroundings to see if it was safe to go, checked left to right and she continued”. He stated that that was consistent with the way he had observed her to drive in the past: T135.30-.46.

85. Mr Halwagy said that when he saw out the corner of his eye a white “thing” coming at speed, as an instant reaction he quickly grabbed his sister and veered the steering wheel to the left. His memory was his reaction occurred right at the time of the collision: T136.21.

86. Mr Halwagy said that some days after the accident he had a conversation with his sister about going to the police station and as a result, they went to Green Valley police station and provided a statement in relation to the accident: T136.37-T137.23. Mr Halwagy said his statement was given to Constable Koshil and that he did his best in giving an account of what he remembered in the statement.

87. Mr Halwagy said at some point later he received a call from his sister early in the morning that she was being charged and he picked her up and took her to the police station. He said he was “quite furious” and expressed his thoughts to Constable Martinez that the fault of the accident was that of the plaintiff. He said the defendant was not charged: T138.5-.17.

88. In cross-examination, Mr Halwagy confirmed that his recollection was at its best on 27 May 2018 as opposed to other occasions: T138.44. He rejected the plaintiff’s version of the accident that his sister had proceeded to make a right-hand turn against a red arrow and that she was at fault. He also rejected the suggestion that his sister was distracted and only reacted to advice that he had given, and he was mistaken that the arrow was green.

89. It was put to Mr Halwagy that there was a distinction between his police statement which suggested that he grabbed his sister and pulled the steering wheel prior to the collision compared to his oral evidence that it was right at the time or moment of the collision: T140. Mr Halwagy confirmed his recollection that he believed it occurred as an “instant reaction” at the time of the collision: T140.49. Mr Halwagy clarified that he put his right arm around his sister and his left arm on the steering wheel: T141.13 and T141.46. He denied that he took control of the car: T142.43. He asserted that his sister was paying attention and she had control of the vehicle: T143.9; T143.34.

90. Mr Halwagy was then asked questions in relation to his conversation with his sister whilst they were stationary at the traffic light concerning her fiancé’s job. Somewhat inconsistently with the defendant, Mr Halwagy said to his observation the desire of the fiancé to stop work did not concern his sister, but she was upset: T146.11.

91. Mr Halwagy gave evidence that both he and his sister were looking straight ahead and did not have eye contact during the discussion: T146.19-.39.

92. Mr Halwagy accepted in cross-examination that he nudged the defendant but that was not in his police statement and suggested that he must have missed it at the time and not told the police officer: T147.38-T148.3. He could not say why he did not tell the police officer on 27 May 2018 of that matter. Mr Halwagy could not provide any explanation for why he would have to nudge his sister if she was sitting looking at the traffic lights. He denied that she was looking in his direction: T148.14-.25. He was unable to answer the question whether from his observation his sister appeared to be in a “daze” at the time: T149.7. Mr Halwagy gave evidence that his police statement was his best and most accurate memory of the events of the accident: T151.41-.50.

93. Mr Halwagy then gave evidence that there were vehicles in Hoxton Park Road in a westerly direction but confirmed that he did not tell the police about that: T152. He said he was not asked that question at the time he gave his statement: T152.50.

94. Mr Halwagy was cross-examined about giving evidence about the “B lights” in his evidence in chief whereas that was not referred to in his statement. He said that was because no one had asked him about the “B lights” previously, only the traffic lights: T154.16. He denied that his evidence about the “B lights” was recently invented.

95. Mr Halwagy agreed that when he gave evidence on a previous occasion he stated that the plaintiff in the proceedings said he was responsible for the accident: T155.17. In re-examination, he clarified that it was at the hospital, and he spoke to the plaintiff who apologised for the accident with both him and the plaintiff saying they were sorry about the accident at the time: T156.10-.11.

96. Mr Halwagy confirmed that at the time he placed his left hand on the steering wheel both his sister’s hands were on the steering wheel and attempting to steer the vehicle to the left: T159.6.

Submissions

97. The defendant provided comprehensive written submissions to the Court and also made further oral submissions. It is unnecessary for the purposes of these reasons to set out in great detail the defendant’s submissions. In summary, the defendant submitted as follows:

(a) The evidence overwhelmingly demonstrated that the defendant was not at fault in the motor vehicle accident. The plaintiff’s attempt to impugn the credit of the defendant and Mr Halwagy failed. No positive evidence was adduced in the plaintiff’s case apart from his assertion that he went through a white “B” light; (b) The defendant contends that the plaintiff was mistaken in believing he had a white “B” light; (c) There is a complete absence of any logical or plausible counterfactual that would explain the defendant’s actions other than the account which they provided; (d) Mr Halwagy gave evidence that the green light ahead was at all relevant times showing green and therefore there could be no change in the lights which could have given the basis for a mistake by him; (e) Although it may be accepted that the defendant was distracted for a period while stationary at the lights, there is no explanation for an alleged decision to proceed through the lights without checking the arrow; (f) There should be factual findings that the defendant’s brother nudged the plaintiff and said the lights were green and that she checked that there was a green arrow, looked to the left and right and then started turning her vehicle before the collision. It should be found that the plaintiff was at fault in relation to the collision; (g) Detailed submissions were made in relation to appropriate factual findings which should be made; (h) The plaintiff had been working since 5am and it is plausible that he was fatigued and was mistaken about having a white “B” signal. Further, the plaintiff was approaching from a distance whereas the defendant was stationary at the lights and had unimpeded vision; (i) Although the defendant was in a conversation with her brother, there is no evidence she was distracted at the relevant time which is immediately before the turn. There is nothing wrong with being distracted or engaging in conversation at a traffic light; (j) In substance, the defendant’s version of what occurred has been consistent since 27 May 2018. There is no basis to suggest invention by the defendant in the use of the word “solid” with a light as this was used by her in her 27 May 2018 statement to police; (k) The defendant was defensive in her evidence, but this is not surprising having regard to her view that she was injured in an accident caused by the plaintiff’s negligence: submissions paragraph 16; (l) The plaintiff has given evidence on two occasions without any benefit to her. There is no evidence to suggest she was attempting to mislead the court or was making up her evidence: paragraph 17; (m) It should be found that the defendant was a “scrupulously honest witness”. There was no real challenge on the basis of inconsistency of her two accounts in the two trials: paragraph 18; (n) It was important that the defendant and her brother gave their accounts only a few days after the accident whereas the defendant gave his account about six months later in November 2018: paragraph 20; (o) It should be accepted that there were cars stopped at the lights on the western direction in Hoxton Park Road: paragraphs 21-25; (p) The defendant voluntarily went to the police to provide her statement with her brother: paragraph 28; (q) Mr Halwagy’s evidence entirely corroborated the defendant’s account in all material respects and details: paragraphs 30-35; (r) The traffic light phasing evidence strongly supported the defendant’s case: paragraphs 36-40; (s) It is not logical that the defendant would elect to turn right across a busy road against potentially oncoming westbound traffic against a red arrow as such actions would be “courting disaster”. She was not in a hurry: paragraph 41; (t) There is no phase of the traffic lights which supports the plaintiff’s allegations: paragraph 43; (u) The defendant rejected that she moved off immediately upon being nudged by Mr Halwagy without checking the lights: paragraph 46; (v) Mr Halwagy’s evidence was “unshaken”: paragraph 48. His evidence is consistent with the defendant’s evidence in all material respects: paragraph 50; (w) Similarly to the defendant, Mr Halwagy had nothing to gain from coming forward to provide his evidence or making up evidence: paragraph 56; (x) The attempts by senior counsel for the plaintiff to discredit the defendant and Mr Halwagy were wholly unsuccessful: paragraph 58; (y) Any differences in the various accounts of the defendant and Mr Halwagy were minor: paragraphs 62 to 63; (z) If the Court is unable to decide which competing evidence ought be accepted, the plaintiff has failed to discharge his onus.

98. Senior counsel for the plaintiff made the following submissions in general summary:

(a) There were numerous inconsistencies between the accounts given by the defendant and Mr Halwagy to police compared to the defendant’s May 2019 statement when compared again to their oral evidence. These differences show that both witnesses are at the least unreliable and have at the least reconstructed their evidence; (b) Although the defendant may have used the word “solid” for a light in her 27 May 2018 police statement, her explanation for her change in use of language to generally use the word “solid” was unconvincing, defensive and likely made up in the course of her evidence; (c) The plaintiff’s evidence was simple, consistent and convincing for a person who had frequently used the transit way in question; (d) On any view of the evidence, the defendant was distracted whilst stationary at the traffic lights. Her account of her conversation relating to her fiancé in her police statement was inconsistent with the account which she gave in her oral evidence. It is likely that the defendant, having regard to the topic of conversation with her wedding coming up, would have been concerned and distracted by the conversation; (e) This distraction is confirmed by it being necessary for her brother to nudge her and inform her that the lights had gone green. If the defendant was paying attention this action would have been unnecessary; (f) This makes the plaintiff’s version that he went through a white “B” and the defendant went through a red arrow, likely; (g) The first part of the police statement does not refer to the defendant checking the arrow and looking to the left and right before proceeding as she claimed in her 2019 statement and in her oral evidence. The latter part of her police statement of 27 May 2018 only refers to her looking to the right. The defendant’s account should not be accepted on this matter; (h) The light phasing evidence is not inconsistent with the plaintiff’s version; (i) Overall, the defendant should be regarded as a defensive witness who was an advocate for her own cause; (j) There was a difference between the defendant’s evidence and Mr Halwagy’s evidence as to where they were looking at the time they were stationary at the lights. The defendant said that she was looking at the lights in the middle distance. Mr Halwagy must have been mistaken that the arrow had turned green, possibly focusing on the right solid lights being green to go ahead easterly along Hoxton Park Road; (k) The number of inconsistencies and unsatisfactory aspects to the evidence of Mr Halwagy and the defendant and the inconsistencies in their statement accounts from 2018 compared to the 2019 statements of the defendant, warrant the conclusion that the accounts of the defendant and Mr Halwagy should be rejected and the account of the plaintiff preferred.

Factual findings

99. Both parties made submissions in relation to the factual findings which it was claimed should be made by the Court. The plaintiff’s core case was that the defendant was talking on a matter of concern with her brother whilst stationary at the traffic light, she was distracted and not paying attention, she was nudged by her brother who mistakenly thought the light for the defendant had turned green and she proceeded without checking and turned right against a red arrow and was at fault in causing the collision.

100. The defendant’s core case was that the brother was looking ahead whilst the car was stationery, the defendant and her brother were talking in relation to the fiancé’s job, the defendant was a careful and cautious driver, there was no possible light change which could have caused confusion to the brother, the defendant was distracted in her conversation, she was nudged, she looked up and noticed that the red arrow had turned to green, she looked to the left and right to check and proceeded to turn to the right, the plaintiff mistakenly proceeded through a red “B”, the brother saw the plaintiff’s white vehicle out of the corner of his eye and immediately put his right arm across the defendant’s chest to protect her and pulled the steering wheel to the left, with the defendant’s two hands still on the wheel, to avoid a more serious collision.

101. Having regard to the evidence and the submissions made, I make the following findings of fact:

(i) The defendant and her brother were driving along Hoxton Park Road in an easterly direction on 22 May 2018 to pick up car parts from Pepe’s Automotive Spares; (ii) The brother had frequently been in a car driven by his sister as at 22 May 2018. He regarded her as a cautious driver who was aware of her surroundings. She was in her early 20’s at the time; (iii) The plaintiff was a diesel mechanic working for Transit Systems NSW. He was 43 years of age as at 2018. The plaintiff had commenced work at 5:00am on 22 May 2018, having risen at about 4:00am; (iv) The plaintiff had been called by his work to a repair job caused by a breakdown. He was entitled to travel by vehicle in the transit way, a two lane way in the middle of Hoxton Park Road used usually by buses. He also was travelling eastwards. He was driving a white van; (v) The accident occurred at about 2:30pm, not at 1:45pm as asserted by the plaintiff: T35.44 cf Ex A pages 3, 11, 16, 18; (vi) The accident occurred at the intersection of Hoxton Park Road and Access Road: see Exhibit A pages 25-30; Exhibit 1; (vii) The defendant approached the intersection travelling eastwards and went into the right hand lane intending to turn right across Hoxton Park Road and into Access Road to go to Pepe’s Automotive Spares. This turn was controlled by a traffic light arrow; (viii) When the defendant approached the intersection of Hoxton Park Road eastwards, the right hand turn arrow was red. The solid eastbound roundel signal for eastbound traffic was green: Exhibit B; Exhibit A, page 21; (ix) The defendant halted her vehicle at the front of the right hand turn lane behind the white solid line and being able to see the white solid line: see Exhibit A page 30. I accept the defendant’s evidence on that aspect; (x) Whilst the defendant’s vehicle was stationary at the traffic light, the defendant and Mr Halwagy were talking about the defendant’s fiancé resigning his job. Mr Halwagy says the defendant was not concerned about the fiancé potentially resigning his job but she was upset: T146.11. The defendant stated that she had no concern about her future husband’s employment. In my view, having regard to the proximity of the defendant’s upcoming wedding and the defendant being a student with a part-time job only, the conversation would have been somewhat animated on the defendant’s part, and she would have been concerned but not upset, as the fiancé had not made any final decision to leave his job: see T92.47. I accept the submission for the plaintiff on this issue; (xi) Whilst stationary at the traffic lights, Mr Halwagy was looking straight ahead: T146.35. I find that having regard to the nature of the conversation and the nudge which shortly occurred, the defendant had inclined her head slightly to the left: T93.29-T94.14. I reject Mr Halwagy’s evidence that the defendant was looking straight ahead during the entire conversation: T146.16-.39; (xii) At some stage, while he was looking straight ahead, Mr Halwagy nudged his sister’s left arm with his right elbow and said words to the effect “lights are green”. At that time the defendant had both her hands on the steering wheel. The fact Mr Halwagy needed to nudge the defendant indicated she had been somewhat distracted during the conversation at the lights; (xiii) At this time the defendant believed that a car or cars were stopped in the westerly lanes of Hoxton Park Road at the traffic lights: Exhibit A page 21 (“car stopped”) cf T152, T55-56 (the plaintiff recalls cars but could not say which lanes). On the evidence, I cannot find that this is likely as the defendant and Mr Halwagy were not looking particularly in that direction. There is no evidence suggesting pedestrians were at this time crossing Hoxton Park Road; (xiv) At this time, the plaintiff was approaching the intersection in the transit lane, believing he had a white “B” light which allowed him to proceed through the intersection; (xv) There are issues to be determined, if possible, relating to this time period as to whether:

(a) The defendant had a green or red arrow; (b) Mr Halwagy was mistaken in concluding that the defendant had a green arrow before nudging the defendant; (c) The plaintiff had a white or red “B” signal; (d) The defendant looked up, saw the green arrow, looked to the left and right and then proceeded to turn;

(xvi) The defendant proceeded to cause her car to commence to turn right across the transit way towards Access Road. She had both hands on her steering wheel; (xvii) The defendant’s police statement taken on 27 May 2018 confirms the defendant’s account that she checked what colour the traffic light was before turning and saw a “green solid to go straight. Green arrow to go right and a red B”:

Q) Did you check your right before starting the turn?

A) To my right yes”: Exhibit D.

This is generally, but not entirely, consistent with:

(a) Mr Halwagy’s 27 May 2018 police statement: Exhibit A page 23; Exhibit E paragraph 5; (b) The defendant’s 2 May 2019 insurance statement: Exhibit C paragraph 62; (c) The defendant’s oral evidence: T55.9-.24; T56.25-.30; (d) Mr Halwagy’s oral evidence: T135.34-.50.

The first police statement did not include the defendant stating that she looked left and right before beginning her turn, only looking to the right: Exhibit D pages 90-91 cf. Exhibit C paragraph 62; Exhibit F T80.20; T83.40;

(xviii) There was no impediment or restriction on the view of the lights or intersection of the plaintiff, defendant or Mr Halwagy; (xix) As the defendant was commencing to turn her vehicle to the right, Mr Halwagy noticed “out of the corner of his eye”, a white “thing” coming at the defendant’s car “at speed”: T136.1-.10. The plaintiff was travelling at 65kph in a 70kph zone. Mr Halwagy exclaimed words to the effect: “Oh shit”; (xx) Virtually instantly, whether just before or at the time of the collision is unclear, Mr Halwagy placed his right arm across his sister’s chest with his right hand over the defendant’s upper right arm and grasped with his left hand on the steering wheel of the car and pulled it to the left: Exhibit E paragraph 6; T136.13; T140.14; T141.46-T142.17. At this time, the defendant was turning right, not having seen the plaintiff’s white van and Mr Halwagy was pulling to the left. In his police statement, which Mr Halwagy confirmed as likely to be more accurate (T138.44), Mr Halwagy said he acted before the collision whereas in his oral evidence he said he acted “right at the moment of the collision”: T140.19. In my view, little turns on the difference; (xxi) The defendant, immediately following the impact, tried also to turn the steering wheel from the right to the left; (xxii) The light phasing evidence does not clearly exclude either version of the facts. It is unclear, however, what the light change could have been to cause the mistake alleged by the plaintiff in Mr Halwagy if he was looking straight ahead: Exhibit B; Exhibit A pages 7-9; (xxiii) It is unclear how busy the westward lanes of Hoxton Park Road were at the time although overall it was a busy road; (xxiv) The plaintiff’s van tipped over in the accident. Both the plaintiff and the defendant were trapped in their vehicles. Emergency assistance and the police arrived soon after. The plaintiff and the defendant were taken to Liverpool Hospital; (xxv) The defendant was discharged from hospital on 23 May 2018. Not having been contacted by police, the defendant and Mr Halwagy attended and gave statements to the police on 27 May 2018; (xxvi) The plaintiff was discharged from hospital, went overseas on a planned holiday soon after and did not give a police statement until November 2018, some 6 months after the accident; (xxvii) Although there was some suggestion, apparently weeks later, that the defendant may be charged by police, this never occurred; (xxviii) The plaintiff made an application for personal injury benefits on 23 November 2018: Exhibit A page 2; (xxix) The proceedings were commenced on 24 November 2021; (xxx) A first trial occurred of the matter in October 2023: Exhibit F; (xxxi) A remitter for a new hearing on liability was ordered by the Court of Appeal on 1 August 2024.

102. I will now proceed to consider the central issues in dispute.

Consideration

Relevant principles relating to fact finding, credit and reliability

103. The factual versions of events relating to fault in the present case are starkly different between the plaintiff and the defendant. In considering those different versions of events, it is important to consider the evidence in the context of any independent evidence or contemporary independent documents, any objectively established facts and the apparent logic of events.

104. The current proceedings are civil proceedings, and the Court must find the case of a plaintiff proved if it is satisfied that the case has been proved on the balance of probabilities: section 140(1) of the Evidence Act 1995 (NSW).

105. It is not suggested that this section of the Evidence Act imposes a different test to the common law. In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361, Dixon J stated as follows:

“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty …”.

106. His Honour added at 362:

“But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.”

107. These statements of the principle to be applied in Briginshaw were approved expressly by Dixon, Evatt and McTiernan JJ in Helton v Allen (1940) 63 CLR 691 at page 712.

108. In Nguyen v Cosmopolitan Homes [2008] NSWCA 246, McDougall J (with whom McColl and Bell JJA agreed), after a thorough examination of the authorities, summarised the position at [55] as follows:

“55 The position may be summarised as follows:

(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;

(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;

(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and

(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”

109. In the present case, the parties have urged that the opposing central witnesses present at the time of the accident are either mistaken or have reconstructed their evidence. Senior counsel for the plaintiff appears in places in his cross-examination to suggest fabrication by the defendant in her evidence. This requires the Court to form an assessment in relation to the credibility and reliability of the central witnesses.

110. In doing so, it is important to recall the statement by the majority of the High Court in Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] as follows:

“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.”

111. There have been numerous statements in authorities in relation to the principles to apply in assessing credit and reliability.

112. It is clear that in making factual findings, a court may accept part only of a particular witnesses’ evidence. That is the case even if it is found by the court that a witness is lying as to part of the evidence of the witness: Danckert v Tonkin [2015] NSWSC 1570 at [152]; Croucher v Cachia [2016] NSWCA 132 at [129].

113. In Sheer v Jeffreys [2024] NSWSC 1161 Kunc J at [46] set out a number of legal principles relating to fact finding and credit and reliability which he had summarised in Saravinovska v Saravinovski (No 6) [2016] NSWSC 964 at [464]–[473]. His Honour also referred to the comments of Leeming JA in Dedakis v Deligiannis [2024] NSWSC 1018 at [15] where his Honour stated that:

“Memory is fallible and malleable, especially memory concerning past beliefs. … memories of past beliefs are revised to make them more consistent with present beliefs … It is usually desirable to start with reliable contemporaneous documents and uncontroversial facts. … That is not to deprecate the potential significance of testimonial evidence. … testimonial evidence may provide valuable assistance in explaining the context of, and omissions from, the contemporaneous documents. …”

114. An appeal from the orders of Kunc J to the Court of Appeal was dismissed: [2025] NSWCA 31. Adamson JA (with whom Mitchelmore JA and Basten AJA agreed) held that Kunc J’s examination of the evidence of the witnesses and his reasoning for preferring the respondent was orthodox and thorough in that he viewed “the matter chronologically and [took] into account the surrounding circumstances”. I take this to be in general a confirmation of the approach of Kunc J and the principles he applied at first instance: see at [33]–[40]. See also the comments of Leeming JA in Trustees of the R**oman Catholic Church for the Diocese of Maitland – Newcastle v AA [2025] NSWCA 72 at [133]-[135].

115. In the present case, there were no independent witnesses to the accident. Mr Halwagy was the brother of the defendant. Similarly, the relevant police officer did not express from the materials any reasoned conclusion in relation to the fault of the accident. No further action was taken because of the inconsistent accounts, although there was some suggestion at some stage that the defendant was contemplated to be charged. This never occurred.

116. I have carefully taken into account the various material tendered including extracts from the transcript of the previous District Court hearing in 2023, the police notebook statement of the defendant and the transcript of the various statements in Exhibit A. I have also taken into account the other evidence tendered including the traffic light phases in Exhibit B and the video evidence in Exhibit 1. Detailed submissions were made by each party in relation to why their factual version should be preferred. Having seen each of the witnesses give evidence, and having seen the defendant being cross-examined in some detail, I am unable to find that any of the witnesses were being deliberately untruthful or had deliberately fabricated evidence for the purpose of the proceedings. All of the witnesses appeared to me to be doing their best to give truthful evidence in relation to their recollections of what occurred in the accident and in the period thereafter. I do not regard the evidence of Mrs Zamagias or of Mr Halwagy as to what occurred in the hospital to be particularly relevant one way or the other. The case therefore comes down to each of the relevant witnesses honestly believing their version of the accident to be correct.

117. The evidence given by the plaintiff was relatively short. However, in my view he made concessions where appropriate including that he had a limited recollection in relation to the surrounding traffic at the time.

118. In my view, the defendant and Mr Halwagy also made concessions where they did not have a clear recollection in relation to certain matters such as the timing and dates of the defendant’s interactions after 27 May 2018 with Constable Benitez.

119. The defendant appeared to be an intelligent woman who paid particular regard to the questions she was being asked, although she tended to answer them in places providing longer answers than were strictly necessary. On occasions she was defensive, but this was in the context of a meticulous cross-examination. I was less impressed with her brother, Mr Halwagy, who seemed to have a less complete recollection of the details of the accident. Where there is any difference between the two on matters common to both, I would prefer the defendant’s recollections and account.

120. Considerable criticisms were made by senior counsel for the plaintiff in relation to the evidence constituting the recollections of the defendant and Mr Halwagy. In particular, attacks were made in relation to asserted inconsistencies in the defendant’s account of the circumstances of the accident. It was noted:

(a) In the defendant’s statement to the police, she referred to being “nudged” by her brother with his elbow and being told that the “lights [were] green” but there was no reference to him grabbing the steering wheel; (b) In her 2019 statement to the insurance investigator, she did not refer to either the brother’s nudge, him grabbing the steering wheel or there being cars in the westerly direction lanes opposite; (c) In her 2023 evidence to the District Court, she referred to both a nudge and the brother grabbing the steering wheel.

121. In relation to Mr Halwagy, he confirmed that his 2018 statement was the earliest and therefore the most reliable account. In that statement there is no reference to a nudge but there is a reference to him placing his “right arm” around the driver in an attempt to protect her while holding the steering wheel and turning it left. Mr Halwagy confirmed that he must not have told the police officer of the “nudge” at the time, but could not give a reason why he did that or why he had to nudge his sister other than she was still talking.

122. I note the following matters which appear to me to be relevant:

(a) The defendant, Mr Halwagy and the plaintiff were all interested in a determination of who was at fault in the accident. Although the defendant and Mr Halwagy may not have had any financial interest, they had an interest in being seen to give consistent evidence in a long-running matter; (b) The defendant and Mr Halwagy made their statements to the police on 27 May 2018. The plaintiff did not give his version of the accident to police until 13 November 2018, some six months after the accident. Accordingly, the statements of the defendant and Mr Halwagy were provided to police much closer in time to the accident and therefore more likely to be accurate as being provided when their recollections were fresher; (c) Various relevant aspects were consistent between the defendant’s police statement and Mr Halwagy’s police statement, although there were differences. Mr Halwagy’s police statement was short. He referred to the defendant’s vehicle starting to turn “as the traffic arrow turned green”. That is in substance consistent with the defendant’s account. As stated, he refers to him placing his right arm around his sister in an attempt to protect her while taking hold of the steering wheel and turning it left. That is different to the defendant’s account. In her statement, the defendant gives more detail including that her brother nudged her with his elbow and said “lights are green”. She does refer to her brother pulling her towards him but not grabbing the steering wheel. Her statement later in the account also states that she saw a green arrow to the right and a red “B”; (d) Mr Halwagy in his police statement does not refer to cars stopping in Hoxton Park Road travelling in a westerly direction. However, it is a relatively short statement. The defendant’s statement refers to “opposite, a car stopped” without referring to cars in the plural, although the defendant questioned the accuracy of this and said that there was more than one car stopped. It is possible that the police officer did not record the defendant’s answer properly as claimed although the defendant signed the notebook: Exhibit D, page 93; (e) Mr Halwagy in his statement does not refer to the defendant looking at the lights or looking to the left and right before proceeding to turn. The defendant in her police statement refers to her checking to her right but not to her left and right as she indicates in her oral evidence; (f) The defendant in particular stated that she only answered the questions she was asked as a reason why various statements were not comprehensive. That is possible and a factor to be taken into account; (g) The plaintiff gave evidence that the accident occurred at 1.45pm. The defendant stated that it occurred at 2:30pm (Exhibit C, paragraph 13). The transcript of the various statements seems to suggest that the police believe the accident occurred at around 2.35pm (Exhibit A, page 22); (h) Both the plaintiff and the defendant were very familiar with the roadway and intersection. See Exhibit C paragraph 32 in relation to the defendant; (i) The defendant stated in her 2019 statement that she was not in a rush and was driving normally. The plaintiff was proceeding to a work assignment at the end of his shift (Exhibit C, paragraph 41 in relation to the defendant); (j) The defendant’s statement does not refer to her being the first vehicle stopped in the right hand lane, although it does state that at the intersection of Access Road, she stopped on the red light (Exhibit A, page 21). In her 2019 statement, the defendant indicated that she was the first vehicle in the right-hand lane (Exhibit C, paragraph 55). This was consistent with her oral evidence; (k) Both the 2018 and 2019 statements of the defendant referred to her talking to her brother. The 2018 statement says that she was talking to her brother Gabriel about her fiancé “losing his job”. This is different to her oral evidence where she stated that she was talking about her brother leaving his job. This does not appear to me to be a significant point; (l) The 2019 statement in paragraph 62 referred to the turning right arrow changing to green and the defendant looking left and right before beginning her right turn. This is not in the police statement (Exhibit C, paragraph 62); (m) The plaintiff’s 2019 statement and her oral evidence refers to the defendant’s brother making an exclamation, apparently having seen the plaintiff’s car. This is also referred to in the 2018 police statement. Both statements refer to the defendant brother grabbing her; (n) At the commencement of the 2018 police statement, the defendant initially does not refer to checking the light before turning. However, she does refer to it in the latter part of the police statement. She also confirms having a green turning right arrow in paragraph 113 of her 2019 statement; (o) In his oral evidence, Mr Gabriel Halwagy indicated that he had driven with his sister very often and described her as being very cautious and very aware in relation to her driving. The defendant appeared to the Court to be a fairly precise person in her evidence; (p) Mr Halwagy confirmed that after he had nudged the defendant she checked to the left and the right before proceeding. This is consistent with the defendant’s 2019 statement (Exhibit C paragraph 62); (q) Mr Halwagy denied that his sister was distracted and only reacted to his advice that the lights were green. That is consistent with paragraph 62 of the defendant’s 2019 statement; (r) Mr Halwagy denied in his oral evidence that he took control of the car when he perceived an impact. He said the defendant still had control of the car with both hands on the steering wheel. He said he merely acted to prevent a “bigger collision”; (s) Both Mr Halwagy and the defendant denied that the defendant was inattentive at the time; (t) There were slight differences between Mr Halwagy and the defendant as to where they were looking when she was “chatting”. Mr Halwagy had the defendant looking straight ahead whereas the defendant said in her oral evidence that she had her head slightly turned to the left; (u) Various other slight inconsistencies in the defendant’s evidence and Mr Halwagy’s evidence were referred to by senior counsel for the plaintiff.

123. I have carefully considered the submissions which have been made by both parties in relation to their respective cases. I have also looked at the 2018 police statements and the 2019 statement of the defendant. Overall, I found the defendant to be a fairly impressive, albeit occasionally loquacious, witness. She appeared overall to have a good recollection of the accident. On the central issues of what occurred, I find that the defendant’s evidence is generally consistent in her 2018 statement and her 2019 statement although some aspects are more detailed in each. Mr Halwagy also confirmed that the arrow was green when the defendant began to turn her vehicle.

124. I particularly take into account the timing of the provision of the police statements and that the defendant’s statement and her brother’s statement were taken some six months before the plaintiff’s police statement.

125. Having reviewed all of the evidence I am inclined to prefer the defendant’s account in her oral evidence as to what occurred. In my view, it was in substance consistent with the contents of her statements about only turning when the arrow facing her had turned green. The inconsistencies established in cross-examination of the defendant and Mr Halwagy did not detract considerably in my view from their evidence on that issue.

126. However, I do not need to go as far as making a positive factual finding as to the defendant’s account of the accident. Having taken into account all of the evidence and the submissions, I am not satisfied on the balance of probabilities of the plaintiff’s account. In summary, I do not have an actual persuasion that his version of the accident is more probable than not. The provision of his police statement some 6 months after the accident, the positive overall impression I formed of the defendant, the general consistency of her account that she had a green arrow and the support on the central issue gained from Mr Halwagy’s evidence, are factors which are particularly relevant. It also seems unlikely that Mr Halwagy would have been confused in relation to a change in the lights. I accept his evidence that he was looking ahead. On the light phasing evidence, the lights going ahead east would have been likely green. There was no evidence of pedestrians crossing Hoxton Park Road at the time.

127. In the end, I am unable to find on the balance of probabilities that the plaintiff’s account of him proceeding through a white “B” sign and the defendant turning on a red arrow have been established. Whilst senior counsel for the plaintiff was able effectively to highlight some inconsistencies in relation to the defendant and Mr Halwagy in cross-examination, they were not such as to undermine the defendant on the central point.

128. Turning back to section 5B of the CLA, I am not satisfied that the plaintiff has established the elements of the section and, in particular, the defendant failed to take the precautions of checking that she had a green arrow before commencing the right-hand turn.

129. For these reasons I make the following orders:

130. Judgment for the defendant.

131. The parties are to confer and indicate to the Associate to Dicker DCJ within seven days their positions in relation to costs. The matter will be relisted if there is disagreement as to the appropriate costs order to be made.

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