In a decision handed down by the New South Wales Court of Appeal on 2 April 2026, Justice Adamson with President Ward and Justice Free agreeing, reaffirmed the importance of gathering contemporaneous evidence and supporting witness statements.
Factual Background
This case concerned a collision between Mr Zamagias (the plaintiff) and Ms Saltalamacchia (the defendant) which occurred on 22 May 2018.
On the date of the collision, the plaintiff was driving along a transit way towards an intersection. The defendant, who was driving in the same direction as the plaintiff, was stopped at the lights in the turning lane directly north of the transit way. As the “B” light illuminated white signalling for vehicles in the transit way to go, the plaintiff proceeded straight through the intersection. At the same time, the defendant proceeded to turn right through the intersection, and the vehicles collided.
On 27 May 2018, the defendant and her brother (who was seated in the passenger seat of her car at the time of the collision) attended the police station to make police statements. The plaintiff made his first statement to police in November 2018, some six months after the collision, and applied for personal injury benefits on 23 November 2018.
The plaintiff commenced proceedings against the defendant on 24 November 2021. The plaintiff’s case was dismissed by the primary judge and judgment entered in favour of the defendant.
The plaintiff appealed.
Decision of the New South Wales Court of Appeal
The plaintiff argued that the primary judge erred in favouring the defendant’s evidence. He submitted that the six-month delay between the incident and the date on which he gave his first statement to police was immaterial and did not affect the reliability of his evidence because an event as ‘dramatic’ as the collision would not be likely to fade in his memory. The Court rejected this, emphasising that the length of time between an event and a witness’ first recorded version of the event is relevant to an assessment of the reliability of the evidence. The relevance of this timing is both consistent with legal precedent and human experience, because it is widely accepted that ‘with every day that passes the memory becomes fainter and the imagination becomes more active’ (Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 per Lord Pearce at 431; and see Willmot v The State of Queensland [2024] HCA 42 at [30]).
The Court concluded that it was open to the primary judge to give greater weight to the defendant’s evidence for the following reasons:
- ‘there was nothing either “glaringly improbable” or “contrary to compelling inferences” about the defendant’s version of events (Fox v Percy (2003) 214 CLR 118 at [29]; Lee v Lee (2019) 266 CLR 129 at [55]).
- The defendant’s statement to police was given only five days after the incident occurred, making it ‘relatively’ contemporaneous.
- The defendant’s evidence was supported by her brother’s statement to police and contained only slight differences from her own recollection of events which were nevertheless immaterial to her case.
- When the defendant gave her statement to police, she was not aware that she might be charged by the police or sued by the plaintiff and therefore she would not have been interested in telling anything other than the truth.
The Court was satisfied that none of the plaintiff’s grounds of appeal had been made out and consequently, dismissed the appeal.
Key Takeaway
This decision is a reminder to claimants, particularly in claims concerning motor vehicle collisions, to keep contemporaneous records of events and to make those records as close to the date of the incident as possible. Contemporaneous evidence could consist of a witness statement and/or a supporting witness statement, photographs or video footage, notes or journal entries, or written communications such as emails or text messages, depending on the case.
The content of this article is intended to provide a general guide to the subject matter. Specific advice should be sought about your specific circumstances.
