Concurrent Wrongdoers – The Shotgun Approach Won’t Work

The introduction of Part 4 into the Civil Liability Act 2002 (NSW) (CLA) provided defendants with a simple way to inform the plaintiff of a concurrent wrongdoer and avoid the need to issue separate cross claims seeking contribution and/or indemnity for the plaintiff’s loss and damage.

Anecdotally, a practice has arisen whereby defendants would broadly identify a person or category of “persons” that could be concurrent wrongdoers for the purposes of Part 4 of the CLA and then leave it to the plaintiff to identify and join the actual concurrent wrongdoer to the proceeding. In GC Group Company Pty Ltd v Bingo Holdings Pty Ltd (No 3) [2021] NSWSC 252 (GC Group v Bingo), such a shotgun approach to identifying a concurrent wrongdoer was found to be improper.

In GC Group v Bingo, Bingo sought to amend its Response to include an apportionable liability defence under Part 4 of the CLA. In doing so, it identified some 700 “customers” who delivered waste to its facility by way of characteristics; being (a) persons or companies who delivered the waste or (b) registered operators of motor vehicles used to deliver the waste. The issue for the Court to determine was whether, for the purposes of pleading an apportionable liability defence, a defendant can identify a closed class of persons as a possible concurrent wrongdoer or whether they need to identify an individual person or company.

Stevenson J held that a defendant must identify a concurrent wrongdoer with sufficient particularity to enable the plaintiff, if so advised, to join that party as a defendant. In doing so, his Honour recognised that the need to provide such identification is congruent with the benefit to the defendant of the apportionable liability defence i.e., the limitation of the defendant’s liability and shifting of the risk of non recovery of loss and damage (e.g. by way of a wrongdoers insolvency) onto the plaintiff.

Although dealing with an interlocutory application, the judgment puts defendants on notice that they will need to give sufficient consideration to the identify of any concurrent wrongdoer to ensure that they are sufficiently particularised and identified to enable a plaintiff to join the concurrent wrongdoer to the proceeding. Adding the requirement to sufficiently plead or identify any cause of action that the plaintiff may have against the concurrent wrongdoer, the days of simply alleging that a third party or parties are concurrent wrongdoer/s by parroting the wording of Part 4 of the CLA appear numbered.

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