The case arises out of the Glasgow bin lorry disaster on 22 December 2014. Lord Ericht resisted GCC's argument that they were entitled to a contribution from First Glasgow in respect of all sums paid in settlement to an injured pedestrian.
The events of 22 December 2014 are well known. A bin lorry driven by the GCC's employee Harry Clarke ran out of control in the centre of Glasgow when Mr Clarke suffered a blackout at the wheel. This caused the lorry to collide with a number of pedestrians. Six people were killed, and fifteen injured.
A fatal accident inquiry was held before Sheriff Beckett in 2015. There were unsuccessful attempts to bring a private prosecution against Mr Clarke. Various civil claims were intimated on GCC. Those claims were settled but with potential rights of recovery preserved. The present case concerned one such claim.
GCC sought a declarator that they were entitled to a contribution by First Glasgow pursuant to section 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940. Their case was that Mr Clarke had previously been employed by First Glasgow as a bus driver, during which time he suffered a blacking-out episode similar to that which occurred on 22 December 2014. It was also alleged that he was subject to disciplinary proceedings when his employment with First Glasgow ended.
With regard to Mr Clarke's application for work with GCC, they argued that their invariable practice was to seek a written reference from the previous employer. The supposed reference has never been produced and its provision is disputed. Nevertheless GCC's position was that a reference was provided by First Glasgow, it was inaccurate insofar as it failed to disclose Mr Clarke's health and disciplinary issues, and GCC would not have employed Mr Clarke as a driver if a true and accurate reference had been provided.
Clyde & Co took the case to a legal debate on behalf of First Glasgow. We argued that (a) GCC's case under the 1940 Act was irrelevant as for a valid claim to arise both parties require to be under a duty of care to the injured person; (b) First Glasgow owed no duty of care to the injured person on the basis that an employer does not owe a duty of care to anyone with whom that employee might interact whilst working with the new employer; (c) it would not be fair, just and reasonable to impose upon First Glasgow such a novel duty of care; and (d) there could be no assumption of responsibility for the safety of the injured person when providing a reference in such circumstances.
The two main issues for determination by Lord Ericht were as follows:
- Whether it is necessary for a claim under the 1940 Act that both the pursuers and the defenders be under a duty of care to the injured person.
- If the answer to the first issue is yes, did the defenders in this case have a duty of care to the injured person?
Lord Ericht upheld our argument that the 1940 Act will only operate in situations where both parties are jointly and severally liable to the same harmed person. If not then the whole basis of the second party, here First Glasgow, is removed. The legislation is clear and the orthodox position was confirmed.
Furthermore it was held that a previous employer who gives a reference to a new employer cannot be liable in negligence to a third party who is injured by the employee during the course of his new employment.
While it is reasonably foreseeable that a misleading reference of the type alleged may lead to harm during subsequent employment, foreseeability is not enough for the imposition of a duty of care. A relationship of proximity is required and there was no such proximity as would create a duty of care; First Glasgow were not in a relationship of proximity with the injured person.
Lord Ericht outlined that it would not be fair, just and reasonable to impose upon First Glasgow such a novel duty of care. The act of providing a reference to an ex-employee could not have amounted to an assumption of responsibility to an indeterminate class of persons.
What can we learn
The decision sheds light on the scope of the 1940 Act and confirms the orthodox position.
Defenders and compensators can be comforted by the fact that its reach not been extended.
Lord Ericht has affirmed that a statutory claim for contribution will only operate in situations where both A and B are liable to C, and not where only A is liable to C, but B is liable to A. The decision confirms that joint wrongdoers are a restricted class.
The decision will doubtless be welcomed by employers and job applicants reliant upon a reference. Potential liability to the whole world would likely have a chilling effect and greatly reduce the number of employers willing to provide a reference.
It has been confirmed that there are limits on the scope of those to whom the reference provider assumes responsibility. The safety of third parties falls outwith those limits.
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