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

[113] Reliance was placed by the respondent on the first two sentences of the following passage from the reasons of McHugh J in Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 at [34]:

"If negligence law is to serve any useful social purpose, it must ordinarily reflect the foresight, reactions and conduct of ordinary members of the community or, in cases of expertise, of the experts in that particular community.

To hold defendants to standards of conduct that do not reflect the common experience of the relevant community can only bring the law of negligence, and with it the administration of justice, into disrepute.

That is not to say that a defendant will always escape liability by proving that his or her conduct was in accord with common practice.

From time to time cases will arise where, despite the common practice in a field of endeavour, a reasonable person in the defendant's position would have foreseen and taken steps to eliminate or reduce the risk that caused harm to the plaintiff.

But before holding a defendant negligent even though that person has complied with common practice, the tribunal of fact had better first make certain that it has not used hindsight to find negligence.

Compliance with common practice is powerful, but not decisive, evidence that the defendant did not act negligently.

And the evidentiary presumption that arises from complying with common practice should be displaced only where there is a persuasive reason for concluding that the common practice of the field of activity fell short of what reasonable care required."


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