Wilson v Nilepac Pty Ltd t/as Vision Personal Training (Crows Nest)

[2011] NSWCA 63

NSW Court of Appeal

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Interrogate

Catchwords

1. Torts
2. › Negligence
3. › Breach of duty of care
4. › Professional standard of care
5. › Personal training studio
6. › Whether reasonably competent professional fitness trainer would have engaged inexperienced and unfit individual in specific physical exercise
7. › Civil Liability Act 2002 (NSW), s 5B(1)(c)
1. Torts
2. › Negligence
3. › Breach of duty of care
4. › Social utility of activity creating risk of harm
5. › Whether social utility of gym operation relevant to precautions against risk from specific exercise
6. › Civil Liability Act 2002 (NSW), s 5B(2)(d)
1. Evidence
2. › Expert evidence
3. › Admissibility and reliability
4. › Whether trial judge erred in rejecting expert evidence in its entirety
5. › Distinction between credibility and reliability findings
6. › Constraints on appellate intervention
1. Evidence
2. › Admissibility
3. › Basis on which evidence tendered
4. › Whether medical reports tendered on causation could be relied upon on liability

Quick Take

Under s 5B(2)(d) of the Civil Liability Act 2002 (NSW), the social utility to be considered is that of the specific activity creating the risk of harm, not the general activity within which it occurs — the social utility of operating a gym does not reduce the precautions required against risks created by a specific exercise. The Fox v Percy constraints on appellate intervention apply to expert evidence rejected on reliability grounds after oral testimony and cross-examination, in the same way they apply to lay witness credibility findings. A party cannot rely on appeal on evidence tendered at trial on a limited basis (here, causation only) for a broader purpose (liability).