ZHANG v GOLDEN EAGLE INTERNATIONAL TRADING PTY LTD & ORS [2006] NSWCA 25

New South Wales Court of Appeal

CITATION: ZHANG v GOLDEN EAGLE INTERNATIONAL TRADING PTY LTD & ORS [2006] NSWCA 25 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 3 February 2006

JUDGMENT DATE: 22 February 2006

JUDGMENT OF: Ipp JA at 1; McColl JA at 2; Basten JA at 3

DECISION: (1) Appeal allowed in part and judgment in the District Court in favour of the Appellant set aside; (2) Judgment be entered for the amount assessed by the trial judge, subject to the following variations -; (a) the assessment of future loss be recalculated by reference to a life expectancy using the 5% multiplier for 48 years, being 966.6; (b) the damages to be assessed and subject to reduction of 30% for contributory negligence be for an amount excluding the expenses paid by the insurer pursuant to s 45 of the Motor Accidents Act; (3) The Appellant file short minutes of orders within 14 days in an amount agreed between the parties to give effect to (2); (4) The appeal be otherwise dismissed; (5) The cross-appeal be dismissed; (6) The Appellant pay the Third Respondents' costs of the appeal; (7) The First and Second Respondents pay the Appellant's costs of the cross-appeal and of the appeal other than costs incurred in relation to the issue of liability of the Third Respondents; (8) The First and Second Respondents have a certificate under the Suitors Fund Act 1951 (NSW) in relation to the costs of the appeal (but not the cross-appeal) if otherwise so entitled

CATCHWORDS: NEGLIGENCE – commercial van used tyres with load carrying capacity below manufacturer's specifications – whether issuer of safety inspection certificate breached its duty of care – whether issuer should have identified defect - TRADE PRACTICES – s42 of the Fair Trading Act 1987 (NSW) - whether the issuing of a safety inspection certificate constituted a representation that the vehicle was roadworthy in relevant respects – implied representation to owner only – representation temporally limited - DAMAGES – assessment of life expectancy – use of historic tables or prospective tables – whether a most extreme case under s79A of the Motor Accidents Act 1988 (NSW) – amounts paid under s45 of the Act – whether amounts should be reduced on account of contributory negligence