FRENCH CJ, HAYNE AND KIEFEL JJ. Mr Angelo Caradonna and Mr Alessio Vella entered into a business venture relating to a boxing event in late 2005 and opened a joint bank account for that purpose. On the same day, Mr Vella, in the company of Mr Caradonna, attended upon his solicitors and took possession of certificates of title to three properties. Subsequently, and unknown to Mr Vella, Mr Caradonna obtained possession of the certificates of title and used them fraudulently to obtain money for his own purposes.
The first and second respondents (referred to collectively as "Mitchell Morgan") advanced $1,001,748.85 to the joint account of Messrs Caradonna and Vella in January 2006 on the security of a mortgage over one of the properties, the "Enmore property". It was Mitchell Morgan's policy at that time to require a borrower's solicitor to certify that the solicitor had identified the borrower and to witness the borrower's signature on all loan and mortgage documents. Mr Caradonna's cousin, Mr Lorenzo Flammia, acted as his solicitor and dishonestly so certified. Mr Caradonna had forged Mr Vella's signature on the documentation. On the basis of the forged documents and the certification, a mortgage was registered over the Enmore property and the funds advanced. The mortgage secured the debt owed to Mitchell Morgan by reference to a loan agreement. Both the mortgage and the loan agreement were drawn by the appellant, Hunt & Hunt Lawyers ("Hunt & Hunt"), a firm of solicitors which acted for Mitchell Morgan on the transaction. Mr Caradonna withdrew the loan money from the joint account by forging Mr Vella's signature on numerous cheques. By the time proceedings instituted by Mr Vella against Mitchell Morgan and others were heard in the Supreme Court of New South Wales, both Mr Caradonna and Mr Flammia (referred to together as "the fraudsters") were bankrupt.
The reasoning of the primary judge, Young CJ in Eq, with respect to the claim brought by Mitchell Morgan against Hunt & Hunt in those proceedings is summarised in the reasons of Giles JA in the Court of Appeal. In essence, the loan agreement was void by reason of the forgery and Mr Vella was not liable to Mitchell Morgan under it. The mortgage over the Enmore property, also forged, had gained the benefit of indefeasibility of title, but because it purported to secure Mr Vella's indebtedness by reference to the void loan agreement, it secured nothing and was liable to be discharged. Young CJ in Eq held that Hunt & Hunt breached its duty of care to Mitchell Morgan. It was negligent because it should have prepared a mortgage containing a covenant to repay a stated amount. These matters are not in issue on this appeal.
In the Civil Liability Act 2002 (NSW), s 35(1) in Pt 4 provides that in any proceedings involving an "apportionable claim":
"(a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant's responsibility for the damage or loss, and
(b) the court may give judgment against the defendant for not more than that amount."
Section 34(1)(a) provides that apportionable claims include:
"a claim for economic loss or damage to property in an action for damages (whether in contract, tort or otherwise) arising from a failure to take reasonable care"
but do not include a claim arising from personal injury.
More important to the issues on this appeal is the definition of a "concurrent wrongdoer" for the purposes of Pt 4, and s 35(1) in particular. Section 34(2) provides:
"In this Part, a concurrent wrongdoer, in relation to a claim, is a person who is one of two or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim."
His Honour the primary judge held that Mitchell Morgan's claim against Hunt & Hunt was an apportionable claim. It is to be inferred, because it was not expressly stated, that his Honour accepted Hunt & Hunt's submission that the fraudsters were, independently of each other or jointly, a cause of the loss or damage claimed by Mitchell Morgan. His Honour held that Hunt & Hunt's liability should be limited to 12.5 per cent of Mitchell Morgan's loss. Mr Caradonna was taken to be primarily liable, to the extent of 72.5 per cent, and Mr Flammia held liable for 15 per cent.
The Court of Appeal (Bathurst CJ, Giles, Campbell and Macfarlan JJA and Sackville AJA) allowed Mitchell Morgan's appeal from that decision, holding that Hunt & Hunt was not a concurrent wrongdoer because the fraudsters' acts did not cause the loss or damage which Mitchell Morgan claimed against Hunt & Hunt. The principal issue on this appeal involves the proper identification of that loss or damage.
These reasons will show that Mitchell Morgan's claim against Hunt & Hunt was an apportionable claim. The loss or damage which Mitchell Morgan suffered was its inability to recover the monies it advanced. Mitchell Morgan's claim against Hunt & Hunt was based on a different cause of action from the claims it would have had against Mr Caradonna and Mr Flammia. But the claims against all of Hunt & Hunt, Mr Caradonna and Mr Flammia were founded on Mitchell Morgan's inability to recover the monies advanced and the acts or omissions of all of them materially contributed to Mitchell Morgan's inability to recover that amount.
Proportionate liability and Part 4
Part 4 of the Civil Liability Act represents a departure from the regime of liability for negligence at common law (solidary liability), where liability may be joint or several but each wrongdoer can be treated as the effective cause and therefore bear the whole loss. Under that regime, a plaintiff can sue and recover his or her loss from one wrongdoer, leaving that wrongdoer to seek contribution from other wrongdoers. The risk that any of the other wrongdoers will be insolvent or otherwise unable to meet a claim for contribution lies with the defendant sued. By comparison, under a regime of proportionate liability, liability is apportioned to each wrongdoer according to the court's assessment of the extent of their responsibility. It is therefore necessary that the plaintiff sue all of the wrongdoers in order to recover the total loss and, of course, the risk that one of them may be insolvent shifts to the plaintiff.
The final report of the inquiry into the law of joint and several liability completed by Professor Davis in 1995 ("the Davis Report") focused upon the liability of concurrent, but independent, wrongdoers. An example there given was of damage resulting to a house by three separate wrongful acts: the builder negligently constructing the house with inadequate foundations; the architect negligently failing to supervise that part of the construction; and the local authority negligently failing to notice the inadequacy of the foundations. Although these acts were independent of each other, the end result is that the house is defective and needs to be underpinned. The act or omission of each wrongdoer was a cause of that damage.
It was observed in the Davis Report that the common law approach to the liability of several concurrent tortfeasors, as distinct from joint tortfeasors, was to regard only the last of the wrongdoers to be liable and to then deny that wrongdoer the right to claim from others who had been involved. This approach was largely attributable to the "traditional preoccupation [of the common law] with finding a sole responsible cause". There were legislative moves away from this position in Australia in the 1940s and 1950s, which permitted rights of contribution between concurrent wrongdoers and abolished the rule that judgment against one barred a subsequent action against another who was jointly liable. However, the legislation providing for contribution operated only as between the defendant and other tortfeasors.
A principal recommendation of the Davis Report was that "joint and several liability be abolished, and replaced by a scheme of proportionate liability, in all actions in the tort of negligence in which the plaintiff's claim is for property damage or purely economic loss". It was suggested that arguments in favour of joint and several liability in the context of property damage and economic loss were less compelling than in the area of personal injury claims and that it was fair that a defendant's liability should be limited to his or her degree of fault, unaffected by matters beyond the defendant's control.
The background to the inquiry into the law of joint and several liability was a perceived crisis regarding the cost of liability insurance. The fear had been expressed that such insurance would become unobtainable. The terms of reference of the inquiry required, in particular, that consideration be given to the issue of professional liability. The Davis Report noted that professional people are usually insured against liability to clients and as a result are often the sole target of legal action when losses are suffered despite the involvement of others.
The Davis Report was not mentioned in the Second Reading Speech or the Explanatory Notes to the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW), which introduced Pt 4 of the Civil Liability Act. This may be because some seven years had passed since the release of the Davis Report. In the Second Reading Speech it was suggested that the provisions were directed not only to problems regarding insurance but also, as the title to the amending Act suggested, to defining the limits which should be placed on personal responsibility. Nevertheless, there is a clear connection between the Davis Report and Pt 4 of the Civil Liability Act. In 1996, the Standing Committee of Attorneys-General released draft model provisions which reflected the recommendations of the Davis Report. The draft model provisions were eventually adopted, in substantially the same form, in Pt 4 of the Civil Liability Act in New South Wales and by the other States and Territories.
The evident purpose of Pt 4 is to give effect to a legislative policy that, in respect of certain claims such as those for economic loss or property damage, a defendant should be liable only to the extent of his or her responsibility. The court has the task of apportioning that responsibility where the defendant can show that he or she is a "concurrent wrongdoer", which is to say that there are others whose acts or omissions can be said to have caused the damage the plaintiff claims, whether jointly with the defendant's acts or independently of them. If there are other wrongdoers they, together with the defendant, are all concurrent wrongdoers.
The purpose of Pt 4 is achieved by the limitation on a defendant's liability, effected by s 35(1)(b), which requires that the court award a plaintiff only the sum which represents the defendant's proportionate liability as determined by the court. For that purpose, it is not necessary that orders are able to be made against the other wrongdoers in the proceedings. Section 34(4) provides that it does not matter, for the purposes of Pt 4, that a concurrent wrongdoer is insolvent, is being wound up, has ceased to exist or has died. Thus under Pt 4 the risk of a failure to recover the whole of the claim is shifted to the plaintiff.
It is not disputed that Mitchell Morgan's claim against Hunt & Hunt is an "apportionable claim" within the meaning of s 34(1)(a). The claim was based upon Hunt & Hunt's breach of an implied term of its retainer that it exercise proper skill, diligence and care. Section 34(1A) provides that there is a single apportionable claim in proceedings in respect of the same loss or damage even if the claim for the loss or damage is based on more than one cause of action, whether of the same or a different kind. There is no express limitation on the nature of the claim which might have been brought by the plaintiff against a concurrent wrongdoer, except the requirement of s 34(2) that the acts or omissions of all concurrent wrongdoers have caused the damage in question.
Section 34(2) poses two questions for the court: what is the damage or loss that is the subject of the claim? Is there a person, other than the defendant, whose acts or omissions also caused that damage or loss? Logically, the identification of the "damage or loss that is the subject of the claim" is anterior to the question of causation. "Damage" is not a defined term, but damage to property and economic loss are included in the definition of "harm" in s 5.
Something more needs to be said concerning the words "the damage or loss that is the subject of the claim" in s 34(2). Similar words appear in s 35(1). It is necessary because it was the view of the Court of Appeal, following a decision of the Victorian Court of Appeal in St George Bank Ltd v Quinerts Pty Ltd ("Quinerts"), that, so far as concerns concurrent wrongdoers, the loss or damage they caused must be "the same damage". This would be consistent with the requirement in s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), with respect to contribution as between joint tortfeasors, that a tortfeasor would if sued have been liable in respect of the same damage.
It is difficult to see that, as between concurrent wrongdoers, the damage they have caused can be other than the same for the purposes of s 34(2), since it is identified in each case as that which is the subject of the plaintiff's claim. Moreover, s 34(1A) refers to there being a single apportionable claim "in proceedings in respect of the same loss or damage". However, it is generally considered preferable, on settled principles of construction, to adhere to the language of the statute in question unless there is a warrant for doing otherwise. None is evident from the provisions of Pt 4, which have a different purpose and operation from the provisions of the Law Reform (Miscellaneous Provisions) Act. The relationship between the contribution provisions of the Law Reform (Miscellaneous Provisions) Act and Pt 4 of the Civil Liability Act is expressed in s 36 of the latter Act. It provides that if judgment is given under Pt 4 against a concurrent wrongdoer, that defendant cannot be required to contribute to any damages recovered from any other concurrent wrongdoer or to indemnify that wrongdoer. In any event, it would seem that the purpose of the Court of Appeal in this case, and of the Victorian Court of Appeal in Quinerts, in referring to "the same damage", was merely to draw attention to the fact that in some cases the acts or omissions of wrongdoers may result in different damage to the same plaintiff. So much may be accepted.
So far as concerns causation, s 5D(1) in Pt 1A of the Civil Liability Act contains general principles to be applied in determining whether negligence caused particular harm. Two elements are stated as necessary for such a finding: that the negligence was a necessary condition of the occurrence (factual causation); and that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). Section 5D(4) requires the court to consider, amongst other relevant things, whether or not and why responsibility for the harm should be imposed on the negligent party.
Where a defendant is found to be a concurrent wrongdoer, within the meaning of s 34(2), s 35(1)(a) requires the court to determine the proportion of the damage or loss claimed that the defendant should bear, having regard to the extent of the defendant's responsibility for that damage or loss.
The damage or loss
In the identification of the damage or loss that is the subject of the claim, it is necessary to bear in mind that damage is not to be equated with what is ultimately awarded by the court, which is to say the "damages" which are claimed by way of compensation and which are assessed and awarded for each aspect of the damage suffered by a plaintiff. Damage, properly understood, is the injury and other foreseeable consequences suffered by a plaintiff. In the context of economic loss, loss or damage may be understood as the harm suffered to a plaintiff's economic interests. It has already been observed that the Civil Liability Act equates "harm" with damage to property and economic loss which results from a failure to exercise reasonable care and skill. Mitchell Morgan's pleading does not expressly state the loss and damage it claims to have suffered. However, it claims that the loss and damage is continuing and that it has lost the sum advanced, together with interest and other expenses. Taken together this might suggest that Mitchell Morgan claims to be unable to recover those monies.
In Hawkins v Clayton, Gaudron J pointed out that in an action for negligence causing economic loss it will almost always be necessary to identify, with some precision, the interest infringed by the negligent act. In that case, it was necessary to identify the interest in order to answer the question as to when the cause of action accrued. Its identification is also necessary for a proper understanding of the harm suffered and for the determination of what acts or omissions may be said to have caused that damage. As her Honour observed, economic loss may take many forms. In Wardley Australia Ltd v Western Australia, it was said that the kind of economic loss which is sustained, as well as the time when it is sustained, depends upon the nature of the interest infringed and in some cases, perhaps, upon the nature of the interference to which it is subjected.
An interest which is the subject of economic loss need not be derived from proprietary rights or obligations governed by the general law. The interest infringed may be in the value of property or its physical condition. Thus in The Commonwealth v Cornwell, the respondent's interest was an entitlement conferred by federal statute to participate in a Commonwealth superannuation fund. An economic interest must be something the loss or invasion of which is compensable by a sum of money. One such interest identified in the cases is a lender's interest in the recovery of monies advanced.
One of the issues in Kenny & Good Pty Ltd v MGICA (1992) Ltd concerned the economic loss suffered by a lender in consequence of a negligent property valuation of the proposed security for the loan. Gaudron J pointed out that the interest of the lender which it had sought to protect by obtaining the valuation was that, in the event of default, the lender should be able to recover the amount owing under the mortgage by the sale of the property. It would follow that the harm to the lender's economic interest as a consequence of the negligent valuation was the lender's inability to recover that sum.
The nature of Mitchell Morgan's economic interest is much the same. The harm it suffered is that it is unable to recover the sums advanced. That is its loss or damage for the purposes of s 34(2). Mitchell Morgan's plea that it continues to suffer loss and damage is explicable on the basis that it continues to be unable to recover those sums.
The Court of Appeal did not identify Mitchell Morgan's loss and damage in this way. In the reasons of Giles JA, with whom the other members of the Court of Appeal agreed, it is said:
"The loss, or the harm to an economic interest, is in the one case paying out money when it would not otherwise have done so, and in the other case not having the benefit of security for the money paid out. The losses the subject of the claims for economic loss against Messrs Caradonna and Flammia and the loss the subject of the claim for economic loss against Hunt & Hunt are different."
Mitchell Morgan's loss or damage, the harm to its economic interest, is not identified in these statements. Rather, Giles JA points to the immediate effects of the fraudsters' conduct and of the negligence of Hunt & Hunt, that is to say, Mitchell Morgan's payment of the money and the inefficacy of the security. It is undeniable that these effects are important in establishing how the loss or damage ultimately came to be suffered and therefore to the issue of causation. However, they cannot be equated with that loss and damage.
In Wardley Australia Ltd v Western Australia, a distinction, in principle, was drawn between the legal concept of loss and damage, and the detriment which a plaintiff may be said, in a general sense, to have suffered upon being induced by a misrepresentation to enter an agreement which proves to be disadvantageous. Entry into a loan agreement in these circumstances does not necessarily mean that a plaintiff has suffered damage, because it will not immediately be self-evident that the value of the chose in action acquired, the right to repayment of the monies advanced, is worth less than the amount paid.
A mortgage negligently drawn is also not necessarily productive of loss, except perhaps in the case of a mortgagor whose equity of redemption is affected immediately on its execution. Recourse to a mortgage will not be necessary in every case. In general terms, in a case involving a loan of monies, damage will be sustained and the cause of action will accrue only when recovery can be said, with some certainty, to be impossible. There are good reasons for a principled analysis of actual damage. One reason is that it would be unjust to compel a plaintiff to commence proceedings before the existence of his or her loss is ascertainable.
At a later point in his reasons, Giles JA identified Mitchell Morgan's loss as the monies paid and said that the loss occurred immediately the monies were paid. His Honour may have assumed that loss had occurred because the loan agreement was unenforceable and the mortgage ineffective. Nonetheless, that is not a complete analysis of loss and damage. At the time the monies were paid there was a serious risk that loss would accrue. But when the agreement and the mortgage were entered into and the payment made, it could not be said that Mitchell Morgan's rights of recovery against the fraudsters, one of whom was a solicitor, were valueless.
The approach of Giles JA to the question of Mitchell Morgan's loss or damage was influenced by that taken in Quinerts, with which his Honour expressed general agreement. Quinerts involved a loan by a bank secured by a mortgage where Quinerts, the valuer, had negligently overvalued the property the subject of the security. The borrower defaulted and the property fetched less than the amount of the advance at sale. Nettle JA, with whom the other members of the Court of Appeal agreed, held, by reference to Pt IVAA of the Wrongs Act 1958 (Vic), which is in terms similar to Pt 4 of the Civil Liability Act, that the borrower and guarantor were not concurrent wrongdoers with Quinerts because the damage they had caused was not the same. His Honour said:
"The loss or damage caused by the borrower and the guarantor was their failure to repay the loan. Nothing which Quinerts did or failed to do caused the borrower or the lender to fail to repay the loan. The damage caused by Quinerts was to cause the bank to accept inadequate security from which to recover the amount of the loan. Nothing which the borrower or the lender did or failed to do caused the bank to accept inadequate security for the loan."
In this passage, his Honour characterises the loss or damage caused by the borrower and the guarantor on the one hand and the valuer on the other as different by reference to two circumstances, neither of which can be equated with loss or damage. In the first place, his Honour identifies the default by the borrower and the guarantor under their separate agreement as loss or damage. This identifies the act or omission which may be causative of loss, rather than the harm which results from it. The loss or damage caused by the valuer is said to be the immediate effect of the valuer's negligence, namely the bank taking inadequate security. This is properly to be seen as a step in causation of damage, as it was in this case.
Nettle JA referred to two decisions in reaching his conclusion that the damage caused by Quinerts and that caused by the borrower and guarantor were different. Each of those decisions concerned contribution legislation. Neither is applicable to the facts of this case.
The firstmentioned case was Royal Brompton Hospital NHS Trust v Hammond ("Royal Brompton Hospital"). As can be seen from the explanation given in Alexander v Perpetual Trustees WA Ltd of the kinds of damage there in question, it is a case far removed from the facts of this case. The Royal Brompton Hospital NHS Trust sued its architects for damages arising from their negligent issue under a building contract of certificates which permitted the builder extensions of time. The architects sought to claim contribution, in respect of the hospital's claim against them, from the builder. The architects were unsuccessful because the hospital's claim against the builder was for its loss which had been caused by the delay in completion of the building, whilst its claim against the architects was for the impairment of its ability to proceed against the builder. The damage was not the same. The builder could not be said to have contributed to the damage claimed to arise from the architects' breach of duty.
The other case referred to by his Honour was Wallace v Litwiniuk, which had been cited in Royal Brompton Hospital. That case concerned a plaintiff who suffered physical injuries as a consequence of another driver's negligent driving. Her solicitors, the defendants, also failed to institute proceedings within time. Unsurprisingly, the Alberta Court of Appeal concluded that the damage caused by each wrongdoer was different: the physical injuries the plaintiff suffered were damage distinct from the harm to her economic interests by reason of her inability to recover damages for those injuries.
The judgment at first instance in this case was delivered prior to the decision in Quinerts. However, Nettle JA was unable to agree with the conclusion reached by the primary judge in this case. To explain the difference Nettle JA saw in the damage caused by the fraudsters and that caused by Hunt & Hunt, his Honour provided the following hypothetical case, which he considered to be analogous to the facts of this case. A thief steals money from a bank. Because of negligence on the part of its insurance brokers, the bank finds that the risk of theft is not covered by its insurance. Nettle JA opined that "the damage caused by the thief would be the loss of the bank's money". However, the insurance brokers did not cause the theft. Nettle JA considered that "the loss or damage caused by the insurance brokers would be the bank's inability to obtain indemnity from an insurance company for the loss suffered by reason of the theft. But nothing done by the thief would have caused the bank's insurance cover to be inadequate."
In that analogy, it is correct to describe the damage or loss suffered by the bank as its inability to recover the monies stolen. One source of recovery could have been its insurer, hence the brokers were a cause of its loss. The other possible source of recovery is the thief. The harm to the bank's economic interests, at a certain point, is the inability to recover from either source.
In the passage quoted, his Honour tests the damage so identified by reference to causation. In doing so his Honour appears to have assumed that there is some requirement that one wrongdoer contribute to the wrongful actions of the other wrongdoer in order that they cause the same damage. There is no such requirement in Pt 4 of the Civil Liability Act. To the contrary, Pt 4 acknowledges, as does the common law, that a wrongdoer's acts may be independent of those of another wrongdoer yet cause the same damage.
Hunt & Hunt also submits that the claim to proportionate liability in Quinerts may have been decided on a narrower basis, namely that the liability of the borrower and of the guarantor did not qualify as damage or loss the subject of the claim against the valuer, for the purposes of Pt IVAA of the Wrongs Act. They are liable in debt, for the payment of the monies retained. It is not necessary to determine this question.
Causation
The proper identification of damage should usually point the way to the acts or omissions which were its cause. Causation is largely a question of fact, to be approached by applying common sense to the facts of the particular case. This is not to deny that value judgments and policy have a part to play in causation analysis at common law and, as has been observed, both factual causation and scope of liability elements are referred to in s 5D(1) of the Civil Liability Act.
In March v Stramare (E & MH) Pty Ltd, it was observed that courts are no longer as constrained as they once were to find a single cause for a consequence and to adopt an "effective cause" formula. Courts today usually recognise that there may be wrongdoers whose acts or omissions occur successively, rather than simultaneously, and who may be liable for the same damage, even though one may be liable for only part of the damage for which the other is liable.
The law's recognition that concurrent and successive tortious acts may each be a cause of a plaintiff's loss or damage is reflected in the proposition that a plaintiff must establish that his or her loss or damage is "caused or materially contributed to" by a defendant's wrongful conduct. It is enough for liability that a wrongdoer's conduct be one cause. The relevant enquiry is whether the particular contravention was a cause, in the sense that it materially contributed to the loss. Material contribution has been said to require only that the act or omission of a wrongdoer play some part in contributing to the loss.
There can be no doubt, on the findings of the primary judge, that Hunt & Hunt was a wrongdoer whose actions were a cause of Mitchell Morgan's inability to recover the monies advanced. The question under s 34(2) of the Civil Liability Act is whether the fraudsters' acts, independently of Hunt & Hunt, also caused that damage.
The word "caused", in a statutory provision in terms similar to s 34(2), has been read as connoting the legal liability of a wrongdoer to the plaintiff. The language of liability is used in contribution legislation, but not in Pt 4 of the Civil Liability Act. Nevertheless, it would usually be the case that a person who is found to have caused another's loss or damage is liable for it. References to the liability of a wrongdoer should not, however, distract attention from the essential nature of the enquiry at this point, which is one of fact.
In determining the question of causation, it is necessary to keep clearly in mind the harm suffered by Mitchell Morgan: its inability to recover the monies advanced. Merely to then state the obvious facts - that the monies were advanced under the loan agreement and on the security of the mortgage - is to acknowledge that the harm suffered has more than one cause.
Because Mitchell Morgan's damage is its inability to recover monies, it is understandable that attention is focused upon the immediate consequence of Hunt & Hunt's negligence, namely the mortgage's inefficacy as security against the property, as causative of the damage. However, as Hunt & Hunt points out in its submissions, there were two conditions necessary for the mortgage to be completely ineffective: (a) that the loan agreement was void; and (b) that the mortgage document did not itself contain the debt covenant, but did so solely by reference to the loan agreement. Hunt & Hunt was responsible for (b), but the fraudsters were responsible for (a).
It should not be overlooked that the effect of the fraudsters' conduct was that Mitchell Morgan entered into the transaction and was left with an unenforceable loan agreement. Mitchell Morgan had no promise to repay upon which it could sue and it was unable, in a practical sense, to recover from the fraudsters when the fraud was discovered. The fraudsters' conduct must therefore be seen as contributing to Mitchell Morgan's inability to recover.
More generally, it is plain that the fraudsters' conduct induced Mitchell Morgan to enter into the transaction, of which the taking of a mortgage was a foreseeable element. The advance of the monies by Mitchell Morgan may have been made on the faith of an ineffective security, but Mitchell Morgan would never have had the need to take a mortgage, nor Hunt & Hunt to draw one, had Mitchell Morgan not been induced to enter into the transaction. The advance was also made on the faith of forged documents and the false certification of a solicitor. On any view, the fraudsters' conduct in inducing Mitchell Morgan to enter into the transaction and pay the monies must be regarded as a material cause of the harm which resulted. The importance of the part the fraudsters' conduct played is reflected in the extent to which the primary judge found them to be responsible for Mitchell Morgan's loss.
Giles JA found that Mitchell Morgan would not otherwise have paid the monies out but for the fraud and that it could have sued the fraudsters to recover the monies. In the same passage, however, his Honour expressed the view that the forged loan agreement was merely "part of the occasion" for the loss, arising from the ineffective mortgage, to sound in damages. This view would appear to deny that the forged documents had any causative effect.
Mitchell Morgan in its submissions interprets his Honour's reasoning to be that the forged loan agreement did not cause the mortgage security to be ineffective. In this regard, Mitchell Morgan may be taken to be referring to Hunt & Hunt's negligent drawing of the mortgage as unconnected with the situation the fraudsters had brought about. But as has already been pointed out, it is not a requirement of proportionate liability that the actions of one independent concurrent wrongdoer contribute to the negligence of another. The question is whether each of them, separately, materially contributed to the loss or damage suffered.
It would appear that Giles JA was influenced to a view that the fraudsters' conduct was not causative of the damage because he considered that Hunt & Hunt's duty extended to protecting Mitchell Morgan from the fraud which occurred. It may be doubtful that Hunt & Hunt's duty is properly described in these terms. It was certainly to protect Mitchell Morgan's economic interests and as such would require any security drawn to be effective, but this is so regardless of the reasons why monies advanced might not be recovered. Hunt & Hunt could not have foreseen that the documentation, certified as correct by another solicitor, was forged. In determining the extent of Hunt & Hunt's duty, care must be taken not to deprive the fraudsters' wrongdoing of any content.
His Honour's approach harks back to a preference for there to be an effective or sole cause; an approach which predated apportionment legislation generally. It denies that wrongdoers' acts may occur successively yet be a cause of the same damage. On this view, "but for" Hunt & Hunt's negligence, loss would not have been suffered. But the same can be said "but for" the fraudsters' conduct.
In March v Stramare (E & MH) Pty Ltd, it was observed that certain commentators subdivided the issue of causation into two questions: causation in fact, to be determined by the "but for" test; and whether a defendant should be held responsible in law for the damage which his or her negligence played some part in producing. The approach was criticised. The "but for" test, although useful for some purposes, has its limitations. The approach placed too much weight on that test, to the exclusion of the common sense approach, which the law has always favoured.
As to the second question, as has been observed above, it is accepted that value judgments and policy considerations have a part to play in determining whether an act is sufficient to bring about the harm suffered by a plaintiff. Section 5D(1)(b) and (4) of the Civil Liability Act may be thought to involve such considerations, requiring the court to consider whether and why responsibility for the harm should be imposed on the negligent party. These considerations are necessary because a finding of causation invariably involves liability on the part of a defendant. Such a finding does not, however, involve a determination as to whether a defendant should bear sole responsibility or whether and to what extent it should be apportioned between other wrongdoers. If a finding of causation is made with respect to other wrongdoers, so that a defendant is a concurrent wrongdoer within the meaning of s 34(2), s 35(1) then requires the court to determine the extent of the defendant's responsibility. The value judgments involved in that exercise differ from, and are more extensive than, those which inform the question of causation.
So far as concerns Hunt & Hunt, it is clearly appropriate that its negligence be adjudged a cause and that it be held liable for Mitchell Morgan's damage. However, it is not consistent with the policy of Pt 4 that Hunt & Hunt be held wholly responsible for the damage, when regard is had to the part played by the fraudsters' conduct. Consistent with that policy, Mitchell Morgan should not recover from Hunt & Hunt any more than that for which Hunt & Hunt is responsible, as found by the primary judge.
Application for special leave
The remaining issue concerns the rate of interest which the Court of Appeal determined that Hunt & Hunt should pay by way of compensation to Mitchell Morgan, which is the subject of an application for special leave to appeal. The Court of Appeal held that Hunt & Hunt should pay interest at the rates specified in the loan agreement forged by Mr Caradonna. Hunt & Hunt contends that the rate should be limited to that allowed under s 100 of the Civil Procedure Act 2005 (NSW). This contention requires reference to s 5D(1) of the Civil Liability Act. Hunt & Hunt accepts that the element of factual causation is met. It does not accept that the second element, that of scope of liability, is met.
Hunt & Hunt's argument centres upon the very high rate of interest that was the subject of the loan agreement and describes Mitchell Morgan as "lenders of last resort". It submits that the scope of its liability should not extend to what is described as a "windfall profit", one which Mitchell Morgan has not shown would have been the subject of agreement by a genuine borrower.
The Court of Appeal did not accept the submission. Macfarlan JA considered that Hunt & Hunt undertook the preparation of a mortgage to protect the interests of its client as a lender. Hunt & Hunt was fully aware of the terms of the loan agreement, which it drafted. In these circumstances, his Honour could not see why Hunt & Hunt's liability should not extend to the rates charged by the client, when the loss was caused by its own negligence.
No error is identified in the reasoning of the Court of Appeal. Special leave should be refused.
Orders
The appeal should be allowed with costs. The application for special leave should be dismissed with costs. The orders of the Court of Appeal dated 15 March 2012 should be set aside and, in lieu thereof, it should be ordered that the appeal by Mitchell Morgan from the orders made by the Supreme Court on 3 July 2009 be dismissed, except in so far as the sum assessed to be payable by Hunt & Hunt included interest calculated pursuant to s 100 of the Civil Procedure Act. Instead, interest should be allowed on the sum assessed by the Supreme Court at the rates applied by the Court of Appeal in its orders of 15 March 2012. The first and second respondents should pay the appellant's costs in the Court of Appeal. The parties should provide the Court with minutes of order in accordance with these reasons within 14 days.