Zamagias v Saltalamacchia

1. [1]

   WARD P: I agree with Adamson JA.

2. [2]

   ADAMSON JA: Billy Zamagias, the plaintiff in the Court below and the appellant in this Court (the plaintiff), and Antoinette Saltalamacchia, the defendant in the Court below and the respondent in this Court (the defendant), were involved in a collision on 22 May 2018 between two vehicles of which they were the drivers.

3. [3]

   The plaintiff brought proceedings in the District Court (the Court below), claiming damages for the alleged negligence of the defendant. The first trial, which was conducted on 23, 24 and 25 October 2023 resulted in a judgment in the plaintiff’s favour ordered on 13 December 2023. However, on 1 August 2024, the defendant’s appeal against the judgment in the first trial was upheld by this Court, which ordered a re-trial: Saltalamacchia v Zamagias [2024] NSWCA 184. The re-trial was conducted in the Court below by Dicker SC DCJ (the primary judge) on 29 and 30 April and 1 May 2025. His Honour entered judgment in favour of the defendant on 13 June 2025: Zamagias v Saltalamacchia [2025] NSWDC 230.

4. [4]

   Immediately prior to the collision, the plaintiff was driving along the transit way (T-way) in the centre of Hoxton Park Road in an easterly direction towards the intersection with Access Road. Use of the T-way is confined to buses or other service vehicles, such as the vehicle which the plaintiff was driving. The defendant was also driving in an easterly direction along Hoxton Park Road. Her vehicle was in the lane immediately north of the T-way, which was reserved for vehicles turning right into Access Road. As the defendant entered the intersection to make a right-hand turn into Access Road, the two vehicles collided. The plaintiff did not dispute that the defendant was stopped at the intersection while the right-hand turn arrow was red, before the defendant entered the intersection immediately prior to the collision.

5. [5]

   Conventional traffic lights at the intersection between Hoxton Park Road and Access Road applied to all traffic other than traffic in the T-way. The movement of vehicles using the T-way was controlled by the use of illuminated “B” signs, which were coloured either white (meaning that the vehicle could proceed through the intersection), amber (meaning that light was about to change to red) or red (meaning that the vehicle must stop and was prohibited from entering the intersection).

6. [6]

   The plaintiff’s case was that:

   1. (1)

      the light signal facing him, which applied to traffic in the T-lane, was a white “B” indicating that he was permitted to drive straight ahead across the intersection with Access Road; and

   2. (2)

      the defendant went through a red right-hand turn arrow as her vehicle entered the intersection and collided with the left side of his vehicle.

7. [7]

   The defendant’s case was:

   1. (1)

      the vehicle she was driving was stationary in the lane closest to the T-lane as she waited for the right-hand turn light to turn green to permit her to turn right;

   2. (2)

      when the right-hand turn arrow turned green, her brother, Gabriel Halwagy, alerted her to the change in lights and prompted her to enter the intersection, which she did, after ascertaining for herself that the light was green; and

   3. (3)

      at the time the plaintiff entered the intersection, his vehicle was facing a red “B”, indicating that eastbound traffic in the T-lane was obliged to stop and refrain from entering the intersection until the red “B” changed to green.

8. [8]

   It was common ground that each of the light sequences in the plaintiff’s and defendant’s respective cases was possible and mutually exclusive. There was no objective evidence, such as skid marks to indicate that one case was more probable than the other. Indeed, there was no evidence as to what occurred or as to the phase of the lights immediately prior to the collision other than that of the plaintiff, the defendant and her brother (who was a passenger in the car the defendant was driving).

9. [9]

   The primary judge was not satisfied that the plaintiff had proved his case on the balance of probabilities and entered judgment for the defendant.

The grounds of appeal

1. [10]

   The plaintiff appeals against the judgment on the following grounds:

2. [11]

   No challenge was made to the primary judge’s identification of the relevant principles or his Honour’s reasons.

The primary judge’s reasons

1. [12]

   In J[101], the primary judge made the following findings of fact (which I have converted to a continuous narrative that substantially adopts the primary judge’s wording and omits evidentiary references).

2. [13]

   On 22 May 2018, the defendant, who was then in her early 20s, and her brother, Mr Halwagy, were driving along Hoxton Park Road in an easterly direction to pick up car parts from Pepe’s Automotive Spares, which is located on Access Road. As at that date, Mr Halwagy had frequently been in a car driven by his sister and regarded her as a cautious driver who was aware of her surroundings (J[101(i)-(ii)]).

3. [14]

   As at the date of the accident, the plaintiff, then 43 years old, was employed as a diesel mechanic by Transit Systems NSW. He had commenced work at 5am on 22 May 2018, having risen at about 4am. He had been called by his work to a repair job caused by a breakdown. He was driving a white van along the T-way in the middle of Hoxton Park Road in an easterly direction towards the intersection with Access Road (J[101(iii)-(iv)]).

4. [15]

   The defendant approached the intersection travelling eastwards in the right-hand lane as she intended to turn right across Hoxton Park Road and into Access Road to go to Pepe’s Automotive Spares. This turn was controlled by a right-hand turn arrow. When the defendant approached the intersection of Hoxton Park Road eastwards, the right-hand turn arrow was red. The solid roundel signal for eastbound traffic was green. The defendant stopped her vehicle at the front of the right-hand turn lane behind the white solid line in a position where she was able to see the white solid line (J[101(vii)-(ix)]).

5. [16]

   While the defendant’s vehicle was stationary at the traffic light, the defendant and Mr Halwagy were talking about the defendant’s fiancé resigning from his job. According to Mr Halwagy, the defendant was not concerned about her fiancé potentially resigning his job but she was upset. The defendant stated that she had no concern about her future husband’s employment. Having regard to the imminence of the defendant’s wedding and the fact that she was a student with a part-time job, the conversation would have been somewhat animated on the defendant’s part, and she would have been concerned but not upset, as her fiancé had not made any final decision to leave his job (J[101(x)-(xi)]).

6. [17]

   Whilst stationary at the traffic lights, Mr Halwagy was looking straight ahead. Having regard to the nature of the conversation and the nudge which shortly occurred, the defendant had inclined her head slightly to the left and, contrary to Mr Halwagy’s evidence, was not looking straight ahead during the entire conversation. 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 (J[101(xi)-(xii)]).

7. [18]

   At the same time the defendant believed that a car or cars were stopped in the westerly lanes of Hoxton Park Road at the traffic lights. However, this cannot be found to be likely as the defendant and Mr Halwagy were not looking particularly in that direction. There is no evidence that suggests that pedestrians were crossing Hoxton Park Road (J[101(xiii)]).

8. [19]

   At this time, the plaintiff was approaching the intersection in the T-way, believing he had a white “B” light which allowed him to proceed through the intersection (J[101(xiv)]).

9. [20]

   There was no impediment or restriction on the respective ranges of vision available to the plaintiff, defendant or Mr Halwagy of the lights or the intersection (J[101(xviii)]).

10. [21]

    The defendant proceeded to cause her car to commence a right turn across the T-way towards Access Road. She had both hands on the steering wheel. Her 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 [and a] [g]reen arrow to go right and a red B”. When the police asked her whether she checked to her right before starting the turn, she said that she did. The defendant’s first police statement did not include a reference to her stating that she looked right and left before beginning her turn (J[101(xvi)-(xvii)]).

11. [22]

    The defendant’s version to police was generally but not entirely consistent with Mr Halwagy’s police statement, also made on 27 May 2018; the defendant’s 2 May 2019 insurance statement; her oral evidence and Mr Halwagy’s oral evidence (J[101(xvii)]).

12. [23]

    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”. The plaintiff was travelling at 65kph in a 70kph zone. Mr Halwagy exclaimed words to the effect: “Oh shit”. Virtually instantly, either just before or at the time of the collision, Mr Halwagy placed his right arm across his sister’s chest with his right hand over her upper right arm and grasped the steering wheel of the car with his left hand and pulled the steering wheel to the left. 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 made on 27 May 2018 (which Mr Halwagy confirmed as likely to be more accurate than his oral evidence given on 30 April 2025), Mr Halwagy said he acted before the collision whereas in his oral evidence he said he acted “right at the moment of the collision”. The primary judge considered that “little turns on the difference” (J[101(xix)-(xx)]).

13. [24]

    The accident occurred at about 2.30pm (not at 1.45pm as asserted by the plaintiff) at the intersection of Hoxton Park Road and Access Road.

14. [25]

    Immediately following the impact, the defendant also tried to turn the steering wheel from the right to the left (J[101(xxi)]).

15. [26]

    The evidence of the phases of the lights at the intersection does not clearly exclude either version of the facts. It is unclear, however, what the light change could have been to cause the mistake which the plaintiff alleged that Mr Halwagy made if Mr Halwagy was looking straight ahead (J[101(xxii)]).

16. [27]

    It is unclear how busy the westward lanes of Hoxton Park Road were at the time although overall it was a busy road (J[101(xxiii)]).

17. [28]

    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. The defendant was discharged from hospital on 23 May 2018. On 27 May 2018, the defendant and Mr Halwagy, who had not previously been contacted by police about the accident, attended the police station and made statements to police (J[101(xxiv), (xxv) (xxvii)]).

18. [29]

    The plaintiff was discharged from hospital a few days after the collision. He went overseas on a planned holiday soon afterwards and did not give a police statement until November 2018, some six months after the accident. The defendant was not charged by police [J[101(xxvi)]).

19. [30]

    On 23 November 2018, the plaintiff applied for personal injury benefits. The proceedings were commenced on 24 November 2021 (J[101(xxvii)]).

20. [31]

    The primary judge identified the issues relating to the time period immediately prior to the collision, as being whether (J[101(xv)]):

    1. (1)

       the defendant had a green or red arrow;

    2. (2)

       Mr Halwagy was mistaken in concluding that the defendant had a green arrow before nudging her to proceed;

    3. (3)

       the plaintiff had a white or red “B” signal; and

    4. (4)

       the defendant looked up, saw the green arrow, looked to the left and right and then proceeded to turn.

21. [32]

    The primary judge set out the relevant authorities concerning onus of proof and assessment of credibility. No challenge has been made to his Honour’s identification of authority or statements of principle. The primary judge addressed the inconsistencies in the versions given by witnesses over time and the differences between the defendant’s evidence and that of Mr Halwagy. The primary judge canvassed each of the matters raised by the parties in cross-examination of the three witnesses. It is not necessary to recite or summarise these matters, some of which arise from the grounds of appeal and will be considered below.

22. [33]

    The primary judge’s conclusions as to the credibility of respective witnesses are as follows:

23. [34]

    The primary judge made the following dispositive findings:

Consideration

1. [35]

   Before turning to the grounds of appeal (set out above), I propose to identify relevant statements from authorities concerning the task performed by the primary judge.

2. [36]

   The advantages enjoyed by trial judges in finding facts were summarised by Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 at [90]:

3. [37]

   Statements to similar effect are to be found in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23] (Gleeson CJ, Gummow and Kirby JJ).

4. [38]

   It is also an important principle that a tribunal of fact is entitled to accept some parts of a witness’ evidence and reject other parts: see the discussion in CCL Secure Pty Ltd v Berry [2019] FCAFC 81 at [94] (McKerracher, Robertson and Lee JJ).

5. [39]

   Mr Dooley SC, who appeared for the plaintiff in this Court and in the Court below, submitted that the primary judge was in error in taking into account, or giving “undue weight” to, the timing of the plaintiff’s first statement to police. Mr Dooley submitted that an event such as the dramatic event which occurred on 22 May 2018 would be such as to render immaterial a delay of six months (the plaintiff’s police statement was made on 13 November 2018 after his return from Greece) when assessing the reliability of the plaintiff’s version. Mr Dooley submitted that there would be no alteration in the memory between a few days and six months. He also sought to draw an analogy between cases of child sexual abuse where a first complaint is not infrequently made years, if not decades, after the alleged abuse.

6. [40]

   The asserted irrelevance of the time at which a witness gives a first recorded version of what occurred is not only inconsistent with authority but also with experience. Delay is accepted as a matter which affects the reliability of a witness’ memory. As was said in Willmot v The State of Queensland [2024] HCA 42; (2024) 98 ALJR 1407 at [30] (Gageler CJ; Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ):

7. [41]

   The length of time between an event and a witness’ first recorded version is relevant to an assessment of the reliability of the reported version. For example, in Onassis v Vergottis [1968] 2 Lloyd’s Rep 403, Lord Pearce said at 431:

8. [42]

   Nor do I accept the analogy advanced by Mr Dooley with child sexual abuse cases. The unusual nature of the conduct involved with such offences is regarded as capable of making an impression on the memory of a child even where there is a lengthy delay before the first complaint and the child’s memory of tangential detail has faded or disappeared completely. In Reed v R [2006] NSWCCA 314 Spigelman CJ said at [64] (McClellan CJ at CL and Sully J agreeing):

9. [43]

   Further, it is not uncommon for perpetrators of such offences to threaten their victims with serious consequences if they disclose the conduct. The victims may feel implicated and ashamed of their involvement in the conduct and, on that account, delay reporting, sometimes for decades. As Basten JA (R A Hulme and Campbell JJ agreeing) said in Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140 at [61]:

10. [44]

    None of these considerations which pertain to child sexual assault cases is relevant in the present case. Persons involved in motor vehicle accidents commonly report them to the police promptly. Those, such as the plaintiff, who propose to sue for damages for a driver’s negligence, have no reason to delay the reporting of an incident. Although a car accident can accurately be described as a traumatic event, the details of the lead up to the collision, in the circumstances of the present case – the speed, direction of travel, traffic signals, presence and location of other cars, what was observed immediately prior to the impact – are all matters, the detail of which can be expected to fade with time.

11. [45]

    Had the plaintiff given a contemporaneous statement to police, it would have been open to the primary judge to give it greater weight than his statement given six months later. Further, the plaintiff’s recollection was largely confined to his speed and what the applicable light indicated to him. Unlike the evidence of the defendant and her brother, the plaintiff was unable to provide tangential details.

12. [46]

    In the present case, as is apparent from the extracts below, there was a notable but not unexpected difference between the sparse account which the plaintiff gave police on 13 November 2018 and the considerable detail which the defendant was able to give to the police when she reported the accident five days after its occurrence (including about her destination, what she was discussing with her brother when they were stopped at the lights, where she looked before and as she put the car into motion, whether the cars in the opposite direction were stopped, the movement of the cars in the lanes next to her, the traffic signal they were facing and what her brother actually said, in direct speech, when he realised that there was going to be a collision).

13. [47]

    On 27 May 2018, the defendant told Constable Benitez in the course of her interview at Liverpool police station, as recorded in his notebook:

14. [48]

    Constable Benitez proceeded to ask the defendant further questions about the accident in the following exchange which he recorded in his notebook:

15. [49]

    The police interview with the defendant concluded at 3.33pm.

16. [50]

    While the defendant was being interviewed by Constable Benitez, her brother was interviewed by Constable Koschel, who reduced what Mr Halwagy told him to a statement, which, as it was not signed, may well have been typed up (from notes made at the time) after the defendant and Mr Halwagy had left the station. The contents of this statement are relevant to ground 6 below.

17. [51]

    The plaintiff’s statement was relevantly limited to the following exchange with Constable Benitez on 13 November 2018:

18. [52]

    Plainly, the timing of the plaintiff’s statement to police, which was his first recorded version of the accident, was relevant. As is evident from ground 1, the plaintiff also submitted, in the alternative, that the primary judge erred in giving it too much weight. The weight to be given to matters of evidence is pre-eminently a matter for the primary judge, who is obliged to consider the evidence as a whole. This ground has not been made out.

19. [53]

    This ground challenges the primary judge’s preference for the defendant’s evidence that she turned right when the arrow was green: J[125]. It is a general ground which would appear to be based on the other specific grounds which challenge the defendant’s credibility (which are addressed below). The primary judge was entitled to prefer the evidence of the defendant for the reasons given by his Honour. There was nothing either “glaringly improbable” or “contrary to compelling inferences” about the defendant’s version: Fox v Percy at [29]; Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]. It was first given relatively contemporaneously and was supported, in material respects, by the evidence of Mr Halwagy.

20. [54]

    For the reasons given below with respect to ground 5, the evidence established that when the defendant first approached police to report the accident, she was not aware of the possibility that she might be charged. At that point, she had little interest in doing anything other than telling the truth as she recalled it. While the defendant’s subsequent versions differed from her original version in some respects (which the primary judge found to be immaterial), she did not deviate from the central propositions that she had been stationary at the lights and waited for them to change. Not long after the light had changed to a green arrow, she entered the intersection when the collision occurred. The significance of changes in versions given over time also arises with respect to ground 5 (see below).

21. [55]

    Ground 2 has not been made out.

22. [56]

    The defendant told police that she was not looking “behind” towards the T-way. Her evidence was that she looked at the applicable lights (and saw a green arrow, permitting her to turn right) and also saw cars stopped on the opposite carriageway. The negligence which the plaintiff alleged against the defendant was that she went against the lights, not that she failed to take reasonable care to avoid him when she ought to have seen him coming along the T-way beside her. Mr Dooley sought to argue that the defendant’s statement that she was not looking towards the T-way was tantamount to an admission that she was not looking towards the lights which were displayed at the edge of the T-way. I do not consider this to be a fair reading of her evidence. The defendant maintained that she had looked at the lights when her brother nudged her and, to that extent at least, she must be taken to have looked towards the T-way.

23. [57]

    In these circumstances, I am not persuaded that the primary judge’s treatment of this evidence gives rise to any error.

24. [58]

    Mr Dooley submitted that the phasing of the lights was such as to make it improbable that the plaintiff would have gone through a red “B” on the T-way. He argued that the primary judge failed to give any consideration to the length of time during which the plaintiff would have had to be inattentive to have failed to observe the red “B”. He pointed to the evidence which indicated that the “B” light facing the plaintiff must have been amber for 4 seconds and red for a further 2 seconds before the right-hand turn arrow turned from red to green. On these calculations, and given the plaintiff’s speed of 65km/h (18m per second), Mr Dooley submitted that the plaintiff would have had to travel a total of at least 108m (18m per second x 6 seconds) without noticing (if the defendant’s version of the lights were accepted) that he was facing an amber or red “B”. Further, Mr Dooley submitted that, to this 6 seconds, there needed to be added another 4 seconds or so to take account of the fact that, when the right-turn arrow showed green, the defendant’s brother nudged her before she caused the car to turn right, which would produce a distance of 180m (18m per second x 10 seconds). Mr Dooley submitted that such a high level of inattention was inherently improbable.

25. [59]

    The difficulty with this submission is that it rests on the same fallacy as the argument which Dixon CJ (otherwise in dissent) rejected in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8. In that case, the plaintiff’s husband was killed when the truck he was driving, alone, at about 25mph, upon a road winding up through wooded hills collided with an unladen diesel truck going downhill at a speed of about 35mph in the opposite direction. As the plaintiff’s husband had died, he could not give evidence. The driver of the diesel truck (the defendant’s employee) did not give evidence.

26. [60]

    Dixon CJ said, at 304, that although it could be said that it was more likely that the truck going downhill was on the wrong side of the road, “that is only to say that of two guesses one is more probable than another.” His Honour continued at 304-305:

27. [61]

    Although Dixon CJ was in dissent in Jones v Dunkel, this statement of principle has been consistently followed: West v Government Insurance Office of New South Wales (1981) 148 CLR 62 at 66 (Stephen, Mason, Aickin and Wilson JJ); [1981] HCA 38 and GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32 at [60] (Kiefel CJ, Gageler and Jagot JJ).

28. [62]

    Even if it were permissible to compare the objective probabilities of the two versions, it cannot be said that it was more likely that the defendant, having stopped her car at the intersection as the right-hand turn arrow was red, would set off into the intersection while the right-hand turn arrow was still red. This hypothesis assumes at least as high a level of inattention on the part of the defendant and her brother as would be attributed to the plaintiff had he continued to drive along Hoxton Park Road at speed notwithstanding that the “B” light had been amber for 4 seconds and red for 2 seconds before the right-hand turn arrow changed to green.

29. [63]

    For these reasons, ground 3 has not been made out.

30. [64]

    Ground 5 concerns the primary judge’s assessment of the defendant’s credibility. The matters listed in a) to d) of ground 5 largely turn on inconsistencies between what the defendant said on different occasions about tangential matters.

31. [65]

    There were at least four different occasions on which the defendant was asked to recall details of the accident: her statement to police on 27 May 2018; her statement to an insurance investigator on 2 May 2019; her evidence in the first trial in October 2023; and her evidence in the trial before the primary judge in April 2025. At the trial, she was extensively cross-examined about inconsistencies between her versions. These were relied on by Mr Dooley in his submissions to the primary judge, who saw and heard the defendant give evidence.

32. [66]

    Mr Dooley relied on various inconsistencies between what the defendant told police and what she told the investigator, including that the defendant had not divulged the subject matter of her discussion with her brother to the investigator, that she did not tell the investigator that her brother had nudged her when the lights changed and that she had told the investigator that she looked left and right, whereas she had only told the police officer that she had looked to the right. He also detailed inconsistencies between her evidence at the first trial and her evidence at the second trial.

33. [67]

    The defendant was called to give oral evidence at about 2pm on 29 April 2025, the first day of the trial. Shortly before 4pm, it became apparent during the course of her cross-examination that she did not have a copy of her police statement. The primary judge intervened and, before adjourning the Court, asked that the defendant be provided with a photocopy of the police notebook in which her statement was taken down. The defendant was given the photocopy before her cross-examination resumed. The defendant’s evidence, in the first trial, was that she did not get a copy of her statement to police. Discrepancies between versions over time, in these circumstances, are entirely unexceptional. Indeed, questions would arise about the credibility of a witness who is able, when asked about a particular incident on several occasions over a period of years, to recite a version in identical terms.

34. [68]

    It was open to the primary judge to regard the minor inconsistencies about peripheral matters in the defendant’s various versions as not adversely affecting her credibility about the principal matters in her evidence: that she was stationary and set off to make a right-hand turn when the green arrow was illuminated. The primary judge’s finding at J[125], extracted above, was well open to his Honour.

35. [69]

    Mr Dooley also submitted that the defendant was apprehensive about being charged when she attended the police station and made a statement and that her motive to avoid being charged inclined her to make self-serving statements. Mr Dooley eschewed the insinuation from his submission that he was submitting that the defendant was dishonest rather than simply unreliable.

36. [70]

    In any event, the proposition underlying Mr Dooley’s submission – that the defendant feared that she would be charged when she attended the police station on 27 May 2018 – derives no support from, and is contrary to, the evidence. The relevant sequence of events, as clarified in questioning from the primary judge was as follows. The accident occurred on 22 May 2018. The defendant and her brother attended the police station on 27 May 2018 where they were interviewed. The police notebook recorded that the defendant’s interview concluded at 3.33pm that afternoon.

37. [71]

    On a later date, the defendant received a phone call at about 7.30am from Constable Benitez (who had questioned her on 27 May 2018) requesting that she come to the station to be charged. The defendant immediately contacted her brother, who accompanied her to the police station. Mr Halwagy gave evidence to the same effect. It follows from this sequence that, when the defendant attended the police station on 27 May 2018, she had not been warned of the possibility that she might be charged.

38. [72]

    Mr Dooley also submitted in f) of ground 5 that the defendant’s avowed practice of stopping her vehicle so that she could see the white line ahead of her was “highly unlikely”. It is difficult to understand the basis of this submission. The defendant’s evidence, which was that this was her usual practice, was accepted by the primary judge. No error has been demonstrated.

39. [73]

    In support of g) of ground 5, Mr Dooley submitted that the defendant had refused to concede that she had turned and looked towards Mr Halwagy whilst engaged in conversation about her fiancé and that she had denied that she reacted to a “nudge” and that her brother had taken control of the steering wheel.

40. [74]

    The principal matter on which Mr Dooley relied was the defendant’s alleged denial in the first trial that she had reacted to her brother nudging her. This submission was based on the following exchange in cross-examination in the first trial:

41. [75]

    A cross-examiner is entitled to ask leading questions. However, where an affirmative answer is given to a leading question which contains more than one proposition, it is open to the tribunal of fact to decide that the witness has acceded to only one of the propositions or that the question was not sufficiently clear to enable anything to be made of an affirmative answer. The difficulty of assessing what the defendant meant by her affirmative answer is compounded by the double negative in the question which contains a “not” and asks the witness whether she would “disagree”.

42. [76]

    When the defendant’s evidence is read fairly as a whole, her affirmative answer to the question extracted above ought be understood as her agreement only to the proposition that she reacted to her brother’s nudge (as she initially did not notice the change in the right-hand arrow light to green). Indeed, so much was made clear in the following exchange shortly afterwards:

43. [77]

    Accordingly, in these circumstances, the defendant’s affirmative answer to the question about reacting to her brother’s nudge provides no proper basis to question her credibility.

44. [78]

    Ground 5 has not been made out.

45. [79]

    Mr Dooley relied, in support of ground 6, on Mr Halwagy’s statement to police, which was, relevantly, as follows:

46. [80]

    Mr Dooley relied on the fact that Mr Halwagy did not mention in his police statement that he had nudged the defendant to alert her to the change of lights or the discussion he had been having with her about her fiancé’s work situation. He submitted that these omissions were “significant as [Mr Halwagy] had gone to the Police station at the respondent’s request in order to support her to avoid being charged [and his] failure to tell the Police ought to be viewed as … deliberate and indicative of his belief that the respondent moved the vehicle contrary to a red arrow”.

47. [81]

    For the reasons given above with respect to ground 5, there was no suggestion, at the time the defendant and her brother attended the police station on 27 May 2018, that the defendant would be charged. Further, what a person tells police when reporting an accident will be influenced (as the record in the police notebook of the defendant’s interview on that day illustrates) by the questions asked of the person. Ground 6 has not been made out.

48. [82]

    Ground 7 is related to ground 5 since it also concerns the defendant’s credibility. Mr Dooley submitted that the primary judge erred in failing to find that the defendant was inattentive. This submission elides the distinction between the defendant’s admitted inattention prior to her brother nudging her and telling her that the light had changed to green (she having failed to notice it as soon as it occurred) and any inference that the defendant was inattentive when she caused her vehicle to turn right after having been alerted to the change of lights. The distinction was drawn by the defendant herself when questioned by police on 27 May 2018:

49. [83]

    It does not follow from the admitted circumstance that the defendant did not immediately notice the change of lights that she was not attentive thereafter. Ground 7 has not been made out.

Conclusion

1. [84]

   As none of the grounds of appeal has been made out, the appeal must be dismissed. The primary judge’s reasons demonstrate the care with which his Honour assessed the evidence of the three principal witnesses and had regard to the various inconsistencies in their accounts. The primary judge’s conclusion that the plaintiff had not discharged his onus of proof on the question of liability was, for the reasons given by his Honour, amply borne out by the evidence.

Proposed orders

1. [85]

   For the reasons given above, I propose the following orders:

   1. (1)

      Dismiss the appeal.

   2. (2)

      Order the appellant to pay the respondent’s costs.

2. [86]

   FREE JA: I agree with Adamson JA.