Zhang v Popovic [2016] NSWSC 407

Supreme Court New South Wales

Medium Neutral Citation: Zhang v Popovic [2016] NSWSC 407 Hearing dates: 21, 22, 23, 24, 31 March 2016 Decision date: 12 April 2016 Jurisdiction: Common Law Before: Adamson J Decision: See paragraph 248 Catchwords: TORTS – negligence – plaintiff injured while helping truck driver lift trailer ramp – driver aware that ramp was not functioning properly – foreseeable risk of harm that ramp would fall and injure plaintiff – vicarious liability of employer – employer also liable on its own account – failure to properly instruct employee as to safe conduct

TORTS – negligence – causation – accident arising out of deficient weld which caused ramp to fall – liability of owner of trailer – owner in breach of duty to repair and maintain vehicle

TORTS – negligence – liability of third party contractor – contracted to install hydraulic system to raise and lower trailer ramps – no fault with hydraulic system – trailer bracket to which hydraulic system connected failed causing ramp to fall – evidence excluded possibility that contractor installed brackets itself - whether duty to inspect welding of the bracket – no evidence of deficient appearance – trailer tested multiple times for functionality – no breach of duty of care on behalf of third party contractor

INSURANCE – indemnity insurance – whether accident fell within exclusion clause in insurance contract – ambiguity in exclusion clause – clause interpreted in light of statutory background and commercial purpose of the parties – purpose to exclude cover for risks covered by compulsory third-party motor insurance – whether exclusion clause disallowed by s 46 Insurance Contracts Act – exclusion clause not limited by reference to whether defect present at time contract entered into – s46 not applicable - characterisation of accident – accident arose out of defect in trailer while vehicle not being driven – exclusion clause did not apply to the accident – policy covers liability of driver and truck owner – judgment for plaintiff and first and second defendants against insurer Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D Corporations Act 2001 (Cth), s 601AD Evidence Act 1995 (NSW), ss 55, 69(4) Insurance Contracts Act 1984 (Cth), s 11, 46 Insurance Contracts Regulation 1985 (Cth), reg 30 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), ss 5, 6 Motor Accidents Compensation Act 1999 (NSW), ss 3, 3A, 10, 16 Motor Accidents Compensation Amendment Act 2010 (NSW), Sch 1, cl 38 Motor Accidents (Compensation) Act 1979 (NT), s 4A Motor Accident Insurance Act 1994 (Qld), ss 4, 5, 23(1) Trade Practices Act 1974 (Cth), s 74 Cases Cited: Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424 Asteron Life Ltd (formerly Royal & Sun Alliance Financial Services Ltd) v Zeiderman [2004] NSWCA 47; 59 NSWLR 585 Australian Casualty Co. Ltd v Federico (1986) 160 CLR 513 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Connor v Blacktown District Hospital [1971] 1 NSWLR 713 Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 Erect Safe Scaffolding (Australia) Pty Ltd v Sutton [2008] NSWCA 114; 72 NSWLR 1 Insurance Commission of Western Australia v Container Handlers Pty Ltd [2004] HCA 24; 218 CLR 89 Government Insurance Office of NSW v RJ Green & Lloyd Pty Ltd (1966) 114 CLR 437 McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; 203 CLR 579 Nelson v The Holland Insurance Company Pty Ltd [2010] NSWSC 199; 77 NSWLR 313 Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 Prasad v Minister for Immigration, Local Government and Ethnic Affairs (1991) 101 ALR 109 Reardon Smith Line v Hansen-Tangen [1976] 1 WLR 989; 3 All ER 570 Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 Todd v Alterra at Lloyds Ltd (on behalf of the underwriting members of Syndicate 4000) [2016] FCAFC 15 United Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320 Zhu v Treasurer of the State of New South Wales [2004] HCA 56; 218 CLR 530 Zotti v Australian Associated Motor Insurers Limited [2009] NSWCA 323 Texts Cited: Second reading speech for the Motor Accidents (Compensation) Amendment Bill, Legislative Assembly of the Northern Territory, (Hansard) 21 February 2007 Merkin and Enright, Sutton on Insurance Law (4th ed, 2015, Lawbook Co) Sutton, Insurance Law in Australia (3rd ed, 1999, LBC) Category: Principal judgment Parties: Cheng Nian Zhang (Plaintiff) Vlado Popovic (1st Defendant) Calabro Real Estate Pty Ltd (2nd Defendant) Interfreight (Australia) Pty Ltd (3rd Defendant) Popovic Haulage Pty Ltd (4th Defendant) Insurance Australia Limited t/as NRMA Insurance (5th Defendant) National Transport Insurance by its manager NTI Ltd (6th Defendant) ROC Services (NSW) Pty Ltd (7th Defendant) Representation: Counsel: L King SC/CJM Palmer (Plaintiff) P Barham (1st and 2nd Defendant) M McCulloch SC/PR Stockley (6th Defendant) RA Cavanagh SC/OJ Dinkha (7th Defendant)