Zhang v Popovic - [2016] NSWSC 407

Supreme Court

New South Wales

Case Name:	Zhang v Popovic
Medium Neutral Citation:	[2016] NSWSC 407
Hearing Date(s):	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…

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.

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Details

Case: [2016] NSWSC 407
Decision Date: 12 April 2016

CaseChat Overview and Summary

The case of Zhang v Popovic involved a dispute between the plaintiff, Zhang, who suffered injuries while assisting a truck driver, Popovic, in lifting a trailer ramp. The ramp malfunctioned and fell, causing Zhang's injuries. The dispute centred on multiple issues of negligence, vicarious liability, and the application of insurance exclusion clauses. The court was required to determine the extent of liability of Popovic, his employer, and the trailer owner, as well as the liability of a third-party contractor who had installed the hydraulic system for the trailer ramps. Additionally, the court had to interpret an exclusion clause in an insurance contract to determine if it covered the accident.

The central legal issues included whether Popovic and his employer were negligent in failing to properly instruct Zhang on the safe conduct of lifting the ramp, given that Popovic was aware the ramp was not functioning properly. The court held that both Popovic and his employer were vicariously liable for Popovic's actions and also liable on their own account for failing to properly instruct Zhang. The court also had to decide if the trailer owner was negligent in maintaining the ramp and if the third-party contractor was negligent in installing the bracket that ultimately failed. The court found no breach of duty on behalf of the third-party contractor as there was no evidence of a deficient appearance or that the contractor had installed the brackets.

The court further considered whether the accident fell within an exclusion clause in the insurance contract, which was ambiguous. The clause was interpreted in light of statutory background and the commercial purpose of the parties, aiming to exclude risks covered by compulsory third-party motor insurance. The court found that section 46 of the Insurance Contracts Act did not limit the exclusion clause by reference to whether the defect was present at the time the contract was entered into, and thus the exclusion clause did not apply to the accident. The policy covered the liability of the driver and truck owner, leading to a judgment in favour of Zhang against Popovic, his employer, and the trailer owner, as well as against the insurer.

Orders