Zamagias v Saltalamacchia (NSWDC 2025)

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Key takeaways

• District Court of NSW overturns earlier decision on retrial (ordered by NSW Court of Appeal) in favour of the defendant driver and witness. A conflicting version of events concerning traffic lights.
• Contemporaneous statements are given greater weight by the District Court trial judge on retrial.
• Key to a successful section 151Z recovery claim is to obtain supporting evidence and a witness statement early on liability.

Brief facts

This motor accident matter has a lengthy procedural history. It is primarily a contest of conflicting versions of events with respect to traffic lights controlling a T-intersection, which also has a bus transit way (T-way).

The plaintiff was employed as a maintenance technician for Transit Systems Australia, which provided diesel repair support for transit systems.

On 22 May 2018 and during his employment, he was driving his maintenance van in an easterly direction along the T-way on Hoxton Park Road, Cartwright. The plaintiff was permitted to travel in the T-way due to the nature of his work. The T-way and that section of Hoxton Park Road runs parallel with the T-way running as a single lane to the right of the right turning lane. As he approached the intersection with Access Road, he was struck on the left side by a vehicle driven by the defendant turning right from the right turning lane on Hoxton Park Road into Access Road.

The plaintiff sued the defendant in the District Court seeking damages under the Motor Accidents Injuries Act 2017.

Turks has maintained a watching brief over the proceedings in the interests of the plaintiff’s employer (via its workers compensation insurer), seeking recovery under section 151Z of workers compensation payments made to the plaintiff in relation to the accident.

First trial – District Court

The matter went to trial before District Court Judge Ainsley-Wallace in late 2023 (first primary judge).

The plaintiff’s evidence was that he had the right of way as the white ‘B’ signal was displayed, meaning that he was permitted to cross the intersection. The defendant argued that she faced a green right turn signal, allowing her to make the right-hand turn into Access Road at the same time.

The case was unusual because there was no objective or contemporaneous evidence, and the court was faced with a ‘contest determined solely by conclusions of reliability and credit’, concerning which person had the right of way on the traffic lights controlling the intersection.

In crucial question at the first trial was the reliability and credibility of the front passenger travelling with the defendant (Mr H) and his testimony in support of the defendant’s position (who was his sister). Mr H’s evidence was that he saw that the traffic light was green and that he nudged the defendant to proceed. As they turned right, he saw the plaintiff’s van coming on the T-way intersection. Mr H also gave evidence that he saw that the traffic on the other side facing the opposite direction was at a standstill.

The first primary judge did not accept the evidence of the defendant or Mr H, explaining that it was more probable that the defendant’s conversation at the time with Mr H (centred around her fiancé losing his job) caused her to be distracted while waiting for the light to turn green, and that she turned right in error after being nudged by Mr H, not seeing that the arrow remained red. Her Honour found that it was more probable that the plaintiff’s version of what happened was correct.

The first primary judge found in favour of the plaintiff and awarded significant damages.

The defendant appealed the decision to the NSW Court of Appeal.

NSW Court of Appeal decision

Amongst other appeal contentions, the main appeal point was that the first trial judge made an error of dismissing the defendant’s and Mr H’s evidence on the basis of perceived inconsistencies between what was recorded in their statements to a police officer taken about a week after the accident, and the evidence at trial.

The NSW Court of Appeal (Justices Price, Payne and Kirk) held that the statements about the traffic lights given to the police officer and the evidence at the first trial was essentially consistent, in that the defendant and Mr H checked the colour of the traffic light and both said that it was green.

As such, the first trial judge fell into error as there was no factual basis for drawing a distinction between their evidence at the first trial and their police statements, which ultimately led the judge to dismiss their evidence in favour of the plaintiff’s.

The defendant’s appeal was allowed and the matter was remitted to the District Court for a re-trial.

Second trial – District Court

The retrial of the matter was heard before his Honour Judge Dicker SC (the second trial judge) in late April – May 2025, with the Court’s decision handed down on 13 June 2025 on liability only (damages were not in dispute).

The second trial judge noted that the plaintiff’s first statement to police was not given until nearly six months after the accident, because he was in hospital recovering immediately after and also the plaintiff travelled to Greece on a planned holiday.

After careful consideration of the evidence from the first trial and the testimony again in the second trial, his Honour held as follows (in summary):

• The second trial judge was unable to find that any of the witnesses were being deliberately untruthful or had deliberately fabricated evidence. All witnesses were doing their best to give truthful evidence concerning their recollection of the events.
• The defendant was found to be a fairly impressive, albeit occasionally loquacious, witness. Her evidence was largely consistent in her 2018 statement and her 2019 statement.
• The second trial judge particularly considered the timing of the provision of police statements, and that the plaintiff’s statement was given some six months after, whereas the defendant’s and Mr H’s statements were provided much earlier. The plaintiff’s relative delay in providing his first statement to police after the accident, the positive impression of the defendant’s evidence, and the general consistency of her account of the green arrow were ‘factors of particular relevance’ to his Honour on retrial.
• Ultimately, his Honour was not satisfied on the balance of probabilities of the plaintiff’s account that he had a white ‘B’ sign against the defendant’s version that she had a green arrow.
• Further, the second trial judge was not satisfied that the plaintiff had established on balance that the defendant had failed to take precautions of checking that she had a green arrow before commencing the right-hand turn.

Implications

In order for there to be a recovery under section 151Z of the Workers Compensation Act 1987, there must be a liability in a third party to pay damages to the plaintiff for the subject accident. Since the plaintiff failed to establish negligence on the part of the defendant, there is no recovery right under section 151Z after the decision of the District Court in the second trial.

There is the possibility that the matter will (again) go to the NSW Court of Appeal, and we are monitoring developments closely.

The most recent result in this long saga of a matter is a clear demonstration of the importance of obtaining contemporaneous statements from all witnesses involved in any claim. In a contest of competing versions of events, weight will always be given to accounts that are closer to the accident date.

This is especially so in a section 151Z recovery claim where the insurer seeking recovery would ultimately bear the onus of proving on the balance of probabilities the negligence of the third party.