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Zamagias v Saltalamacchia

Zamagias v Saltalamacchia

Case [2025] NSWDC 230 13 June 2025

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District Court

New South Wales

Medium Neutral Citation: Zamagias v Saltalamacchia [2025] NSWDC 230
Hearing dates: 29 April – 1 May 2025
Date of orders: 13 June 2025
Decision date: 13 June 2025
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
1. Judgment for the defendant.
2. 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.

Catchwords:
NEGLIGENCE – motor vehicle accident – remitter from Court of Appeal relating to liability only – dispute as to factual matters relating to liability - no expert report evidence - principles applicable – credit and reliability in issue

Legislation Cited:
Civil Liability Act 2002 (NSW)
Evidence Act 1995 (NSW)
Motor Accident Injuries Act 2017 (NSW)

Cases Cited:
Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176
Briginshaw v Briginshaw (1938) 60 CLR 336
Croucher v Cachia [2016] NSWCA 132
Danckert v Tonkin [2015] NSWSC 1570
Dedakis v Deligiannis [2024] NSWSC 1018
Egan v Mangarelli [2013] NSWCA 413
Fox v Percy [2003] HCA 22; 214 CLR 118
Helton v Allen (1940) 63 CLR 691
Le v Brown, Nguyen v Brown; Tran v Brown; Monica v Brown; Huggett v Brown (No.2) [2019] NSWSC 88
Manley v Alexander [2005] HCA 79; 80 ALJR 413
Marien v Gardiner; Marien v H J Heinz Company Australia Ltd [2013] NSWCA 396
Nguyen v Cosmopolitan Homes [2008] NSWCA 246
Pietrobelli v Jewell Family Nominees Pty Ltd [2022] NSWSC 660
Saltalamacchia v Zamagias [2024] NSWCA 184
Saravinovska v Saravinovski (No 6) [2016] NSWSC 964
Sheer v Jeffreys [2024] NSWSC 1161
Trustees of the Roman Catholic Church for the Diocese of Maitland – Newcastle v AA [2025] NSWCA 72

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

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Zamagias v Saltalamacchia

Details

AGLC: Zamagias v Saltalamacchia [2025] NSWDC 230
Case: [2025] NSWDC 230
Decision Date: 13 June 2025

CaseChat Overview and Summary

The case of Zamagias v Saltalamacchia involves a motor vehicle accident where the plaintiff, Zamagias, sought damages from the defendant, Saltalamacchia, alleging negligence. This case was remitted from the Court of Appeal to the District Court of New South Wales to determine the issue of liability only. The District Court was tasked with resolving the factual disputes that had arisen concerning the accident, specifically regarding the events leading up to and during the collision, without the benefit of expert report evidence.

The legal issues before the court centred on the principles of credit and reliability of the evidence presented by both parties. Given the absence of expert evidence, the court had to weigh the credibility and reliability of the witness testimonies and other evidence provided. The court had to determine whether the plaintiff's version of events was sufficiently credible and reliable to establish negligence on the part of the defendant. The court also needed to assess the defendant's defence and determine whether it was credible enough to absolve the defendant of liability.

In delivering judgment, the District Court found that the plaintiff had failed to prove the defendant's negligence on the balance of probabilities. The court found that the plaintiff's evidence was not sufficiently credible and reliable to establish the defendant's liability. The court held that the defendant's version of events was more plausible and consistent with the objective evidence available. The court concluded that the plaintiff had not discharged the onus of proving the defendant's negligence, and thus, the defendant was not liable for the accident. Consequently, the court entered judgment in favour of the defendant.

The court ordered that the parties are to confer and indicate their positions in relation to costs within seven days. If the parties could not agree on the appropriate costs order, the matter would be relisted for further consideration.

Orders

Orders of the court

1. Judgment for the defendant.

2. 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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Zamagias v Saltalamacchia [2025] NSWDC 230

Cases Citing This Decision

No citing cases yet.

Cases Cited

Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72
Citation 1 (Para 114)

…see at [33]–[40]. See also the comments of Leeming JA in Trustees of the Roman Catholic Church for the Diocese of Maitland – Newcastle v AA [2025] NSWCA 72 at [133]-[135].…
Jeffreys v Sheer [2025] NSWCA 31
Citation 2 (Para 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 mat…
Sheer v Jeffreys [2024] NSWSC 1161
Citation 3 (Para 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…
Dedakis v Deligiannis [2024] NSWSC 1018
Citation 4 (Para 113)

…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:…
Saltalamacchia v Zamagias [2024] NSWCA 184
Citation 5 (Para 2)

…. 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 Cou…
Pietrobelli v Jewell Family Nominees Pty Ltd [2022] NSWSC 660
Citation 6 (Para 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…
Le v Brown, Nguyen v Brown; Tran v Brown; Monica v Brown; Huggett v Brown (No.2) [2019] NSWSC 88
Citation 7 (Para 16)

…r 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…
Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176
Citation 8 (Para 10)

…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 t…
Saravinovska v Saravinovski (No 6) [2016] NSWSC 964
Citation 9 (Para 113)

…et 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 tha…
Croucher v Cachia [2016] NSWCA 132
Citation 10 (Para 112)

…und 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].…
Danckert v Tonkin [2015] NSWSC 1570
Citation 11 (Para 112)

…s’ 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].…
Egan v Mangarelli [2013] NSWCA 413
Citation 12 (Para 16)

…nder , 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 guessw…
Marien v Gardiner [2013] NSWCA 396
Citation 13 (Para 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:…
Hawthorne v Hillcoat [2008] NSWCA 340
Citation 14 (Para 47)

…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…
Nguyen v Cosmopolitan Homes [2008] NSWCA 246
Citation 15 (Para 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:…
New South Wales v Fahy [2007] HCA 20
Citation 16 (Para 57)

…o 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…
Manley v Alexander [2005] HCA 79
Citation 17 (Para 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:…
Fox v Percy [2003] HCA 22
Citation 18 (Para 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:…
Derrick v Cheung [2001] HCA 48
Citation 19 (Para 13)

…ed 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…
Cook v Cook [1986] HCA 73
Citation 20

…nder 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…
Helton v Allen [1940] HCA 20
Citation 21 (Para 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.…
Briginshaw v Briginshaw [1938] HCA 36
Citation 22 (Para 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:…
Briginshaw v Briginshaw [1938] HCA 34
Citation 23 (Para 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:…
Wyong Shire Council v Shirt [1980] HCA 12
Citation 24

…ve 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 fail…
[1946] 1 KB 114 [1946] 1 KB 114
Citation 25

…er 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…

Legislation Cited

Civil Liability Act 2002 (TAS)
1 mention (from Para 11)
Evidence Act 1995 (Cth)
1 mention (from Para 104)
Motor Accident Injuries Act 2017 (NSW)
1 mention (from Para 4)

Medium Neutral Citation:	Zamagias v Saltalamacchia [2025] NSWDC 230
Hearing dates:	29 April – 1 May 2025
Date of orders:	13 June 2025
Decision date:	13 June 2025
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	1. Judgment for the defendant. 2. 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.
Catchwords:	NEGLIGENCE – motor vehicle accident – remitter from Court of Appeal relating to liability only – dispute as to factual matters relating to liability - no expert report evidence - principles applicable – credit and reliability in issue
Legislation Cited:	Civil Liability Act 2002 (NSW) Evidence Act 1995 (NSW) Motor Accident Injuries Act 2017 (NSW)
Cases Cited:	Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 Briginshaw v Briginshaw (1938) 60 CLR 336 Croucher v Cachia [2016] NSWCA 132 Danckert v Tonkin [2015] NSWSC 1570 Dedakis v Deligiannis [2024] NSWSC 1018 Egan v Mangarelli [2013] NSWCA 413 Fox v Percy [2003] HCA 22; 214 CLR 118 Helton v Allen (1940) 63 CLR 691 Le v Brown, Nguyen v Brown; Tran v Brown; Monica v Brown; Huggett v Brown (No.2) [2019] NSWSC 88 Manley v Alexander [2005] HCA 79; 80 ALJR 413 Marien v Gardiner; Marien v H J Heinz Company Australia Ltd [2013] NSWCA 396 Nguyen v Cosmopolitan Homes [2008] NSWCA 246 Pietrobelli v Jewell Family Nominees Pty Ltd [2022] NSWSC 660 Saltalamacchia v Zamagias [2024] NSWCA 184 Saravinovska v Saravinovski (No 6) [2016] NSWSC 964 Sheer v Jeffreys [2024] NSWSC 1161 Trustees of the Roman Catholic Church for the Diocese of Maitland – Newcastle v AA [2025] NSWCA 72
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