Court of Appeal
New South Wales
Case Title: Wilson v Nilepac Pty Ltd t/as Vision Personal Training (Crows Nest) Medium Neutral Citation: [2011] NSWCA 63 Hearing Date(s): 28 February and 1 March 2011 Decision Date: 24 March 2011 Jurisdiction: Before: Beazley JA at [1]
Tobias JA at [3]
Whealy JA at [144]Decision: (a)Appeal allowed.
(b)Set aside the orders made by McCallum J on 10 December 2009 and in lieu thereof that there be a verdict and judgment for the appellant.
(c)Remit the proceedings to McCallum J for the purpose of assessing damages.
(d)The respondent to pay the appellant's costs of the proceedings to date before McCallum J.
(e)The respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitor's Fund Act 1951, if otherwise qualified.
(f)Cross-appeal dismissed.
(g)No order as to costs
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: EVIDENCE -admissibility - expert opinion - relevance - whether medical reports tendered at the trial could be considered on the issue of liability and causation or only with respect to the latter
EVIDENCE - witnesses - credibility or reliability - whether the primary judge should have rejected expert evidence in relation to the reasonableness for the personal trainer to introduce a specific exercise and additions to that exercise
TORTS - negligence - breach of duty of care - personal training studio - whether a reasonably competent professional fitness trainer would have engaged an inexperienced and unfit individual in specific physical activities - Civil Liability Act 2002 (NSW), s 5B(1)(c)
TORTS - negligence - duty of care - social utility of gyms - Civil Liability Act 2002 (NSW), s 5B(2)(d)
Legislation Cited: Civil Liability Act 2002 (NSW)
Cases Cited: Adeels Palace Pty Ltd v Mourbarak [2009] HCA 48; (2009) 239 CLR 420
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Dobler v Halverson and Others; Dobler v Halverson (By His Tutor Kenneth Halverson) [2007] NSWCA 335; 70 NSWLR 151
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186
Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 60 ALR 68
Mummery v Irvings Pty Ltd (1956) 96 CLR 99
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Waterways Authority v Fitzgibbon [2005]…
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- AGLC
- Wilson v Nilepac Pty Ltd [2011] NSWCA 63
- Case
- [2011] NSWCA 63
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the primary judge erred in his assessment of the evidence regarding the trainer's duty of care and breach of that duty. Specifically, the court considered whether a reasonably competent professional fitness trainer would have engaged an inexperienced and unfit individual in the particular physical activities prescribed, and whether the expert medical reports tendered were admissible and correctly considered on the issues of liability and causation. The court also examined the application of section 5B of the *Civil Liability Act 2002* (NSW) concerning the standard of care and the social utility of gyms.
The Court of Appeal allowed the appeal, finding that the primary judge had erred in his findings. The court determined that the expert evidence regarding the reasonableness of the trainer's actions should not have been rejected. It held that the trainer's conduct fell below the standard of care expected of a reasonably competent professional fitness trainer, particularly in relation to an inexperienced and unfit client. The court concluded that the trainer's actions were causative of the client's injuries.
Consequently, the Court of Appeal set aside the original orders and entered a verdict and judgment for the appellant, Wilson. The proceedings were remitted to the primary judge for the assessment of damages, and Nilepac Pty Ltd was ordered to pay Wilson's costs of the proceedings to date and the costs of the appeal. The cross-appeal by Nilepac was dismissed.
Orders
Orders of the court
(a)Appeal allowed.
(b)Set aside the orders made by McCallum J on 10 December 2009 and in lieu thereof that there be a verdict and judgment for the appellant.
(c)Remit the proceedings to McCallum J for the purpose of assessing damages.
(d)The respondent to pay the appellant's costs of the proceedings to date before McCallum J.
(e)The respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitor's Fund Act 1951, if otherwise qualified.
(f)Cross-appeal dismissed.
(g)No order as to costs
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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