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File Number(s): 2025/207971

Publication restriction: No

ex-tempore JUDGMENT - revised

1. The plaintiff commenced proceedings against the defendants with the filing of a statement of claim on 30 May 2025. The first defendant is a hotel, located in Matraville. The second defendant provided security services to the hotel.

2. According to the statement of claim:

3. The plaintiff was a patron of the hotel late on the night of 8 June 2022. A Mr Matteo Grassi was also present. Mr Grassi was intoxicated. The defendants did nothing to stop him drinking. They did not evict him.

4. Mr Grassi harassed and intimated the plaintiff and his friends.

5. As a result of the harassment the plaintiff and his friends left the hotel but were followed by Mr Grassi. After some intervention from the defendants Mr Grassi went back to the hotel.

6. Mr Grassi remained in the hotel where he continued to consume intoxicating alcohol. He left at about 1am.

7. The plaintiff and his friends, in the early hours of 9 June 2022, were returning to the hotel, but before they arrived, they came across Mr Grassi outside a food dispensary called House of Pie.

8. House of Pie is situated very close to the hotel. Mr Grassi assaulted the plaintiff. As a result, the plaintiff was severely injured. This included significant brain damage.

9. The plaintiff alleges that the defendants owed him a duty of care, in essence to protect him from Mr Grassi. They should have restricted Mr Grassi’s drinking and evicted him much earlier in the evening.

10. I stress that the facts that I have just set out are the plaintiff’s allegations.

11. The defendants deny any liability to the plaintiff, but in case they are liable, they have alleged contributory negligence.

12. There is little doubt that Mr Grassi is responsible for the plaintiff’s injuries. But he has not been sued, presumably because he does not have the means to meet the substantial, or perhaps any, damages that the plaintiff can establish.

13. On 30 April 2026, the second defendant filed a notice of motion seeking, pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) an order that there be a separation of issues in the trial.

14. The second defendant identified the following questions to be decided in a separate hearing:

“a. whether the defendant owed the plaintiff a duty pursuant to section 5B of the Civil Liability Act 2002 (NSW) (CLA) and the nature and scope of that duty…;

b. whether any duty, if found, was breached …;

c. whether any breach, if found, caused the alleged harm pursuant to section 5D of the CLA …”

8. The first defendant has joined in the second defendant’s application, although wishes the separate questions to also include contributory negligence and cross-claims (for contribution) between the defendants. In other words, the first defendant wants to expand the separation totally as between liability and quantum. The plaintiff opposes the application.

9. The matter does not yet have a hearing date and is far from being ready to be assigned a hearing date. Although the pleadings have closed, the parties have not finalised their expert evidence either as to liability or quantum. The plaintiff has not yet served his liability expert report, although the time to do so has passed.

10. Final quantum evidence in particular is likely to be some way off because the plaintiff will need further neuropsychological testing, which cannot be done until a set time after the last testing.

11. The parties have provided me with a number of authorities on the exercise of the discretion to make, or not make, an order under r 28.2. For present purposes I distil the principles to the following points:

12. The preferred course is for the whole of a case to be heard at one time.

13. Any application to separate issues should be treated with caution, with the onus squarely on the party making the application.

14. The exhortations of s 56 of the Civil Procedure Act 2005 (NSW) may play a part in the discretion.

15. Consideration should be given to whether there will be any overlap, of witnesses or evidence, between the separate hearings. This is particularly important if the credit of a witness in one hearing will influence that witness’s evidence in the separate hearing.

16. If the first of the separate hearings has the capacity to resolve the whole of the proceedings, or substantially narrow the scope of the dispute, the saving of time may be a justification for an order. This will be especially important where the separate hearing will occupy much less time than a whole hearing.

17. The defendants both assert that:

18. Liability is a real issue in the case. The second defendant expressed the view that the plaintiff’s case is weak.

19. There is no overlap with quantum. The plaintiff will not give evidence on liability because he has no recollection of the assault. It is not clear if the plaintiff’s friends who were with him when the assault occurred, will also give evidence on quantum, for example commenting on his ‘before and after’ condition. I do not regard the transcript of evidence in one hearing being used in the next hearing as practicable, especially if different Judges hear the two separate hearings.

20. If liability has to wait for the finalisation of quantum evidence, there could be a substantial delay. The memories of lay liability witnesses will suffer the ravages of passing time.

21. A liability only trial is likely to last no more than 3 or perhaps according to the first defendant, 5 days. Quantum has been assessed as eleven days, making a ‘whole’ trial up to sixteen days.

22. The plaintiff responded extensively, but its better points were:

23. The proposed question on causation (c. above) necessarily involves an examination of medical issues. I note the plaintiff’s alleged injuries extend beyond immediate effects, like the brain damage, to conditions which arose later, like rhabdomyolysis (the breakdown of muscles sometimes following injury). I note that the second defendant said that the causation issue was likely to be factual causation only, although the first defendant reserved its position in respect of injuries that arose at a later time.

24. There will be an overlapping of evidence, sometimes of witnesses whose credit may be in issue.

25. There is likely to be an appeal from the finding on liability, however decided. This will substantially delay completion of the case.

26. The defendants’ estimates of time are speculative. There may well be little dispute on medical issues after opinions have been received from the experts.

27. The application is premature. Liability evidence (from any side) has not been finalised, quantum evidence is outstanding and, accordingly, the length and breadth of the matters in dispute is presently unknown.

28. I think the ‘premature’ point is determinative. I can well understand the reasoning behind the application, namely, to focus early on liability which might dictate the whole of the case, and in circumstances where the preparation and accumulation of quantum evidence could be a lengthy and expensive exercise ultimately requiring a lengthy and expensive hearing.

29. However, at this stage with liability evidence not yet filed, the extent of the dispute is unknown. This applies as much to the plaintiff’s case as to the cross-claims. Similarly, in respect of quantum, the dispute between the parties has yet to be clarified. It may be that the plaintiff’s injuries are so obvious and destructive of his life that the defendants will have little basis to challenge him. It is possible that quantum will be a much shorter hearing than liability, especially factoring in contributory negligence and the cross-claims.

30. In addition, if the causation question remains in the separate hearing, then there will be a substantial overlap with the medical issues. Again, the extent of any such overlap may disappear, or be limited, with the revelation of the defendants’ medical evidence, if any.

31. Although the first defendant joins in the application for a separation order, its written submissions include this:

“No orders have been made for the service of the defendants’ evidentiary statements, expert liability evidence or expert medical evidence. The defendants will not be able to have the plaintiff undergo a neuropsychological assessment on their behalf until 12 months after the plaintiff’s assessment of December 2026.”

18. I take the comments just quoted as consistent with my view that the application is simply being made too early. However, I do not for a moment suggest that the first defendant agrees with my view.

19. The question then arises as to whether I should dismiss the motion now or stand it over with leave for it to be relisted at a later time. I think what I will do is stand the motion over with liberty to restore on 7 days’ notice. The plaintiff wanted the motion dismissed but the defendants that would involve extra costs if a fresh motion had to be filed.

20. In relation to costs, I think the reason that the motion is premature is, to a large extent, because the plaintiff has not complied with orders and should not benefit from that situation. Accordingly, I am going to order that costs of the motion be costs in the cause

21. I make the following orders:

22. The notice of motion filed by the second defendant on 30 April 2026 is stood over with liberty to any party to restore on 7 days’ notice

23. The costs of the motion to date including today’s hearing are to be costs in the cause

24. The parties are directed to contact the Associate to Chen J with a view to having the matter listed before his Honour for case management.

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