In the Court of Session opinion of Lord Ericht in Glasgow City Council v First Glasgow [2019] CSOH 10, 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.

 

On 22 December 2014, GCC employee Harry Clarke suffered a blackout behind the wheel of a bin lorry, causing the lorry to collide with a number of pedestrians. Six people were killed, and fifteen injured.

 

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.

 

The former employers of Harry Clarke, the driver involved in the Glasgow bin lorry tragedy of December 2014, were not liable under statute to contribute to any award of damages made to families of the victims against Glasgow City Council, a judge ruled yesterday.

Lord Ericht in the Court of Session rejected a case by the council that they would not have employed Mr Clarke as a driver if the defenders, First Glasgow, had provided a true and accurate written reference of his health and disciplinary issues in his former employment, and that they were therefore entitled to a contribution by First Glasgow pursuant to s 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940.

Headed "Contribution among joint wrongdoers", that section provides that where any person has been found liable in damages, they can recover a proportion of the damages paid "from any other person who, if sued, might also have been held liable in respect of the loss or damage on which the action was founded", as the court may deem just.

The council's case was that Mr Clarke had, while in First Glasgow's employment, suffered a similar episode of loss of consciousness as that which caused the fatal crash in 2014. Had accurate references disclosing this been provided, the council would not have employed him.

The council submitted that for it to obtain relief under s 3, it required to establish negligence on the part of the defenders, which could be either because the defenders were liable to the injured parties or because the defenders were liable to the pursuer.

However Lord Ericht upheld the defenders' argument that s 3 only operates in situations where both parties are jointly and severally liable to the same injured person.

He accepted that it was reasonably foreseeable that if a reference omitted reference to a risk of an employee causing harm in the course of employment, then that harm might occur in the course of his work with the new employer. However there required in addition to be a relationship of proximity to the injured person.

"In my opinion in the current case there is no such proximity as would give rise to a duty of care", he said. "The giver of the reference is not in a relationship of proximity with the injured person. The injured person is not injured by the giver of the reference. The injured person is not the recipient of the reference. The injured person is not injured by the recipient of the reference. The injured person is not aware that the reference has been given. The injured person is not aware of what the reference says. The injured person has not relied on the reference in any way. The injured person has not taken the reference into account in deciding to be in central Glasgow that day."

Nor would it be fair, just and reasonable to impose the duty of care contended for. "It could be expected that employers, reluctant to expose themselves to the unpredictable risk of such extensive potential liability to such a great number of unknown persons, might no longer be prepared to give references, in which case the benefits to employees and employers of the availability of references would be lost. Further, to hold that the duty of care contended for does not exist gives rise to no unfairness or prejudice to the injured party: as has happened in the current case, the injured party can recover from the person who was the employer at the time the injury was inflicted."

Finally, there had been no assumption of responsibility by the giver of the reference to the injured party.

However, as the council now wished to amend to introduce a direct case against First Glasgow in negligence, the action would be continued for discussion on how to proceed.

Vikki Melville, partner at Clyde & Co, who acted for First Glasgow, commented: "This 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. The decision also 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."

Click here to view Lord Ericht's opinion.