6 The primary judge set out the matters pleaded by the first, second and fifth defendants in [8]-[13] of his reasons:
"[8] The first and second defendants denied liability to the plaintiff. In particular, they denied negligence, that they owed the plaintiff a duty of care (non-delegable or otherwise), that they were in breach of any duty of care, that the plaintiff's injury was caused by negligence on their part, and they denied they were vicariously liable for the action or inaction of the fifth defendant.
[9] The fifth defendant also denied liability to the plaintiff. He denied that he owed a duty of care to the plaintiff, or, if he did, that he was in breach of that duty. He also denied that the plaintiff's injuries were caused by negligence on his part. He alleged that he had provided an employee to the first and second defendants which brought that employee into the service of the first defendant so that the first defendant, not the fifth defendant, was liable for any negligence of that employee.
[10] The fifth defendant also relied upon the provisions of the Civil Liability Act , 2002 and asserted that:
(a) the conduct of the fifth defendant did not constitute negligence as defined in ss 5B, 5C and 5D of that Act;
(b) any risk of injury to the plaintiff from assault was an obvious risk within the meaning of s 5F of that Act and, accordingly, the plaintiff was presumed to be aware of it and there was no duty on the part of the fifth defendant to warn of that risk;
(c) the plaintiff was intoxicated within the meaning of that expression in that Act and any duty of care owed to the plaintiff was limited by s 49 of that Act and the plaintiff's entitlement to recover was limited by s 50 of that Act;
(d) the plaintiff's capacity to exercise reasonable care and skill was impaired by his intoxication which would not have occurred if he had not been intoxicated so the plaintiff was not entitled to recover damages or, alternatively, was required to have his damages reduced by at least twenty-five percent by reason of the provisions of s 50(4) of that Act.
[11] The first, second and fifth defendants alleged the plaintiff was guilty of contributory negligence. The fifth defendant (but not the first or second defendants) alleged that the plaintiff, by reason of his conduct in the premises of the first defendant, voluntarily accepted the risk of injury from becoming intoxicated and acting in a provocative and aggressive manner toward other patrons in the hotel.
[12] The first and second defendants claimed indemnity or contribution from the fifth defendant pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act, 1946 . They also claimed damages for breach of contract. The latter claim was not pressed. The fifth defendant denied any liability to indemnify or contribute to any verdict recovered by the plaintiff against the first and second defendants.
[13] The fifth defendant claimed indemnity or contribution from the first and second defendants pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act, 1946 . The first and second defendants denied liability to indemnify or contribute to any verdict recovered by the plaintiff against the fifth defendant."