Wilson v Nilepac Pty Ltd t/as Vision Personal Training (Crows Nest) [2011] NSWCA 63

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Wilson v Nilepac Pty Ltd t/as Vision Personal Training (Crows Nest) [2011] NSWCA 63 Hearing dates: 28 February 20111 March 2011 Decision date: 24 March 2011 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