UK: The "Hunt" For Clarity On Apportionment


The High Court has for the first time considered the application of the proportionate liability provisions of the Civil Liability Act 2002 (NSW) (CLA)1, which are mirrored in equivalent legislation in other Australian jurisdictions.  The court considered whether, in order for liability for "damage" to be apportioned to a concurrent wrongdoer, that damage must be "caused" by each concurrent wrongdoer and what analysis the court should undertake in making that assessment.

In a 3-2 decision, the majority of the High Court reinstated the first instance decision,  relevantly concluding that a wrongdoer's acts may be independent of those of another wrongdoer and yet be said to cause the same damage for the purposes of apportionment.


In 2005 Mr Caradonna and Mr Vella entered into a business venture to arrange a boxing bout between Anthony Mundine and Danny Green. A joint account was opened, requiring both their signatures before a withdrawal could be made.

On the same day the joint account was established, Mr Vella took possession of the certificates of title to 3 properties. Unbeknownst to Mr Vella, Mr Caradonna took those certificates of title and used them as security to apply for a loan in the amount of AUD 1 million from Mitchell Morgan Nominees Pty Ltd and Mitchell Morgan Nominees (No.2) Pty Ltd (Mitchell Morgan).

Mr Caradonna also forged Mr Vella's signature on various loan documents and arranged for his solicitor, Mr Flammia (who also happened to be his cousin), to represent to Mitchell Morgan's solicitors (Hunt & Hunt) that he had witnessed Mr Vella's signature. The mortgage was registered and Mitchell Morgan paid AUD 1 million into the joint account. Those funds were immediately withdrawn by Mr Caradonna, who again forged Mr Vella's signature in the process.

Hunt & Hunt prepared the mortgage documents for Mitchell Morgan, but failed to ensure that they were drafted adequately. As a result, the mortgage was ineffectual as security.

On discovery of the fraud, Mr Vella commenced proceedings against, amongst others, Mitchell Morgan. Mitchell Morgan brought cross-claims against Hunt & Hunt, on the grounds it had negligently prepared the mortgage documents, and against Mr Caradonna and Mr Flammia on the basis of their fraudulent behaviour.

First instance decision

At first instance, Young CJ held that Hunt & Hunt was liable to Mitchell Morgan in negligence but also held that Mr Caradonna and Mr Flammia were concurrent wrongdoers for the purposes of Part 4 of the CLA.  On that basis, His Honour apportioned liability between the concurrent wrongdoers on the following basis:

  • Hunt & Hunt's - 12.5%
  • Mr Caradonna - 72.5%
  • Mr Caradonna's lawyer -15%

However Mr Caradonna and Mr Flammia had been declared bankrupt by the time the decision was handed down, leaving Mitchell Morgan unable to recover some 87.5% of its loss.

Mitchell Morgan appealed the first instance decision on the grounds that proportionate liability should not apply or, in the alternative, that Hunt & Hunt should bear a higher proportion of liability.

The New South Wales Court of Appeal decision

The New South Wales Court of Appeal overturned the first instance decision2  on the grounds that Mr Caradonna and Mr Flammia had not caused the same "loss" or "damage" as Hunt & Hunt and were therefore not concurrent wrongdoers for the purposes of the CLA.

Section 34(2) of the CLA provides that a person is a concurrent wrongdoer if it 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."

The Court of Appeal formed the view that:

  • the"damage or loss" caused to Mitchell Morgan by Mr Caradonna and Mr Flammia was causing it to advance loan funds which it would not otherwise have advanced; while
  • the "damage or loss" caused to Mitchell Morgan by Hunt & Hunt's negligence was depriving it of the benefit of security for the money it had loaned.

On that basis, the Court of Appeal held that while Mitchell Morgan's claim against Hunt & Hunt was an "apportionable claim" for the purposes of the CLA, Mr Caradonna and Mr Flammia were not "concurrent wrongdoers".

The Court of Appeal held that Hunt & Hunt was not entitled to limit its liability by operation of the proportionate liability regime and its liability was accordingly increased from 12.5% to 100%. Hunt & Hunt appealed to the High Court.

The High Court decision

Before the High Court Hunt & Hunt argued that a practical, rather than narrow, approach should be adopted by the courts when assessing whether there is a nexus between the "damage" or "loss" said to have been caused by alleged concurrent wrongdoers.

Hunt & Hunt asserted that the terms "damage" and "loss" contained in the CLA should be equated with the term "harm" and that the "harm" in this instance was Mitchell Morgan's inability to recoup the AUD 1 million it had advanced.  It argued that, in addition to Hunt & Hunt, Mr Caradonna or Mr Flammia could be said to have "..caused, independently of each other or jointly..." Mitchell Morgan's inability to recoup the loan advance.

Mitchell Morgan argued that in order for 2 or more persons to be considered concurrent wrongdoers under the CLA a "causal" nexus must be established between the acts allegedly committed, resulting in the damage in question. It argued such a nexus did not exist here.

The majority of the High Court agreed with Hunt & Hunt that the loss suffered by Mitchell Morgan was its inability to recover the money advanced pursuant to the loan.  While Hunt & Hunt's negligent drafting of the mortgage documents was a cause of that "damage", the High Court concluded that the fraudulent acts of Mr Caradonna and Mr Flammia were also a material cause of the "damage" which Mitchell Morgan suffered. 

Significantly, the majority stated that the NSW Court of Appeal had appeared:

".. 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."

The High Court reinstated the primary judge's decision that the loss suffered by Mitchell Morgan should appropriately be apportioned between the 3 concurrent wrongdoers, thereby reducing Hunt & Hunt's liability to the original 12.5%.


The High Court's decision does not completely reject the reasoning employed by the NSW Court of Appeal, or the decision of the Victorian Court of Appeal in Quinerts3 , but makes it clear that:

  • a pragmatic approach must be adopted by the courts when determining whether "damage" or "loss" can be said to have been caused by concurrent wrongdoers; and
  • in assessing the link between "damage" caused by wrongdoers, it is critical to draw a distinction between the acts or omissions which may be causative of loss or damage and the loss or damage which is said to result from it. It is a commonality of the resulting "damage" or "loss" which is a prerequisite to the apportionment of liability.

The High Court's decision strengthens the ability of defendants to rely on the proportionate liability regimes to limit their liability and goes some way to resolving the confusion which has surrounded this area of the law over recent years.

However, the fact that the High Court was split 3:2 with a strong dissenting joint judgment from Bell and Gageler JJ suggests that this is unlikely to be the final word on this aspect of the operation of proportionate liability regimes in Australia.


1Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10 (3 April 2013)

2Mitchell Morgan Nominees Pty Ltd v Vella [2011] NSWCA 390

3St George Bank Ltd v Quinerts Pty Ltd (2009) 25 VR 666

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.