Supreme Court New South Wales Medium Neutral Citation: Ruttley v Edwards [2013] NSWSC 768 Hearing dates: 13 June 2013 Decision date: 14 June 2013 Jurisdiction: Common Law Before: Harrison J Decision: 1. Defendants' notice of motion dismissed. 2. Order that the costs of the motion be the plaintiff's costs in the proceedings. 3. Direct that there be a separate hearing on the question of liability. 4. Grant liberty to the parties forthwith to approach the list manager to arrange a hearing date. 5. Grant liberty to the parties to apply to me on 2 days' notice for directions if required by arrangement with my Associate. Catchwords: PROCEDURE - application for separate determination of issues - no utility in making order - separate trial on liability ordered Legislation Cited: Uniform Civil Procedure Rules 2005 28.2 Civil Liability Act 2002 Cases Cited: Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 Category: Procedural and other rulings Parties: Barry Charles Ruttley (Plaintiff) Richard Dennis Edwards (First Defendant) Deborah Edwards (Second Defendant) Representation: Counsel: B Dooley SC & D Morgan (Plaintiff) S Kettle (Defendants) File Number(s): 2012/186847 Publication restriction: Nil Judgment 1HIS HONOUR: By his statement of claim filed in this Court on 14 June 2012, Mr Ruttley claims damages for personal injuries allegedly suffered by him in the following circumstances. On 16 August 2009, Mr Ruttley was present upon premises located in Kempsey known as the United Service Station and Kempsey Fast Food. The defendants conducted their business at and from those premises. Mr Ruttley went there in the evening to have a meal. 2At approximately 11.30pm on that night, Robert Dickson and William Morris arrived at the service station and entered the restaurant. They proceeded among other things to assault Mr Ruttley and to rob him of the contents of his wallet. This was no doubt a frightening and distressing experience for Mr Ruttley who now claims to suffer from a series of disabilities, including post-traumatic stress disorder, anxiety and depression. He alleges that a long series of continuing psychological and related problems that still afflict him were caused as a result of this incident. 3The foundation of Mr Ruttley's claim is that the defendants owed him a duty of care as a patron or invitee upon the premises to take care of his safety and presumably to take all reasonable steps to protect him from incidents such as the one that occurred. The breach of that duty is alleged to consist in the defendants' failure to ensure that a security door that was installed in circumstances described as "to protect the safety of customers" was not opened when Mr Ruttley's assailants arrived. It is alleged that an employee of the defendants actually caused the security door to be opened so as to give access to Mr Ruttley's assailants when they appeared at the door armed with a tomahawk. A series of cognate formulations of the alleged breaches are set out in the statement of claim but it is presently unnecessary to refer to them in detail. The burden of Mr Ruttley's claim is that the defendants are responsible for his loss and damage because they permitted his assailants to enter the premises where he was present as one of their customers in breach of their duty to him not to do so. 4Perhaps unsurprisingly, the defendants have filed a defence that denies the existence of any such duty of care as is alleged or that they breached it. In particular, the defendants have pleaded that anything that happened to Mr Ruttley was the result of criminal activities on the part of Mr Dickson and Mr Morris, for whose criminal activities they were not responsible. The defendants have also included a reference to Part 1A of the Civil Liability Act 2002 but have not specified what particular provision or provisions of that Act they assert to be of present relevance. 5Mr Ruttley has filed his evidentiary statement as well as his statement of particulars in personal injury proceedings. I have had regard to those statements. I have assumed in the circumstances referred to below that the defendants' case on damages is not complete or is in a very early state of preparation. 6It is in these circumstances that the defendants have filed a notice of motion seeking orders that two nominated questions be tried separately pursuant to UCPR 28.2. Those questions are whether the defendants owed Mr Ruttley a duty of care with respect to his safety as a patron upon their premises and whether it extended to prevent injuries caused by the criminal activities of a third party. 7Correspondence that has reached the Court file concerning the defendants' notice of motion and the orders that they seek appears to have produced a lot of heat but not much light. All parties appear to have overlooked the fact that what the defendants desire, but have so far failed to ask for in terms, is an early and separate hearing on the single issue of their liability. Presumably the inspiration for the defendants' concerns flows from cases such as Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8 and those to which it refers, including Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254. 8In my opinion the resolution of an otherwise potentially arid dispute about the determination of separate issues can be found by setting the proceedings down for hearing limited to the issue of liability. That should not occur until the parties are otherwise ready. For example, it has been foreshadowed that Mr Ruttley may wish to administer interrogatories to the defendants and issue subpoenas to the New South Wales Police Service. The parties should not be required to take a hearing until these and similar matters have been completed to their satisfaction. I would, however, not anticipate or expect that there should be any reason why the hearing of the liability issue should not occur soon. 9Mr Dooley SC on behalf of Mr Ruttley has made it plain that he does not support the course I have proposed. His principal objection is related to the prospect that any appeal from the decision in the separate proceedings would not dispose of the whole proceedings, and that the same process may be repeated after the damages trial takes place. I accept that there is a prospect of that occurring, and of the possibility of additional expense being generated, but I am not persuaded on balance that it is not more efficient to take the course I have indicated. Mr Dooley quite properly concedes that there would not appear to be any concerns about issues of credit potentially being decided differently. Indeed, I would be surprised if Mr Ruttley's version of what occurred on the evening in question were ultimately controversial or could not be agreed. 10In the circumstances I consider that the following orders should be made: 1. Defendants' notice of motion dismissed. 2. Order that the costs of the motion be the plaintiff's costs in the proceedings. 3. Direct that there be a separate hearing on the question of liability. 4. Grant liberty to the parties forthwith to approach the list manager to arrange a hearing date. 5. Grant liberty to the parties to apply to me on 2 days' notice for directions if required by arrangement with my Associate. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 June 2013