Part 4 of the Civil Liability Act 2002 (NSW) (CLA) allows for a defendant to identify other concurrent wrongdoers that may have caused and/or contributed to harm suffered by a plaintiff.

Section 34(2) of the CLA defines concurrent wrongdoer as:

… a person who is one of two or more persons whose acts of omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim.”

In Bingo Holdings Pty Ltd v GC Group Company Pty Ltd [2021] NSWCA 184, the New South Wales Court of Appeal considered whether or not a defendant is able to identify a person or a category of people as concurrent wrongdoers for the purpose of Part 4 of the CLA.

 

Background

The plaintiff (CG Group) commenced proceedings against the defendant (Bingo) seeking damages for contamination of its recycled aggregate by Bingo between 1 June 2017 and 21 July 2017. Bingo sought leave on a couple of occasions to amend its Technology and Constructions List Response so as to plead proportionate liability pursuant to the CLA. The proposed amendments sought to identify over 700 registered owners of vehicles that delivered waste to Bingo, who it was alleged may have caused the contamination of the recycled aggregate.

Bingo submitted to the Court that it was not required to plead that any one or more of those people were a concurrent wrongdoer. Instead, Bingo alleged that it was sufficient that any of the identified parties may be a concurrent wrongdoer.

CG Group opposed the amendment application by arguing that Bingo was required to identify the person/party as a current wrongdoer.


Decision

Their Honours cited with approval:

  1. Hammerschlag J in Ucak v Avante Developments Pty Ltd [2007] NSWSC 367 at [35]:

… that for a defendant to assert that there is a person who is a [concurrent] wrongdoer the defendant must plead the necessary elements which result in the asserted conclusion. Those elements are:

a. the existence of a particular person;
b. the occurrence of an act or omission by that particular person; and
c. a causal connection between that occurrence and the loss that is the subject of the claim.”

  1. Henry J in The Owners – Strate Plan No 87265 v Saaib [2021] NSWSC 150 at [514]:

… it is essential that any defendant be required to plead the proportionate liability defence in a manner that discloses the cause of action and damage in at least as detailed a manner as would be required for any initiating process for a cause of action …”.

The Court concluded that the section 34 of the CLA does require the identification of the alleged concurrent wrongdoer and how their actions caused the loss or damage the subject claim; not merely an alleged potential wrongdoer or identifying a class of persons, who may have caused loss or damage.


Implications

If a defendant is seeking to rely on a proportionate liability defence under the CLA, it must identify each concurrent wrongdoer with precision. It is not sufficient to merely identify a class of persons who may be concurrent wrongdoers.