British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> GLASGOW CITY COUNCIL AGAINST FIRST GLASGOW (NO 1) LTD [2019] ScotCS CSOH_101 (10 December 2019)
URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSOH_101.html
Cite as: [2019] CSOH 101, 2019 GWD 40-650, 2020 SLT 75, [2019] ScotCS CSOH_101, 2020 Rep LR 12
[New search] [Printable PDF version] [Help]
#
Page 1 ⇓
OUTER HOUSE, COURT OF SESSION
[2019] CSOH 101
CA71/18
OPINION OF LORD ERICHT
In the cause
GLASGOW CITY COUNCIL
against
FIRST GLASGOW (NO 1) LIMITED
Pursuers
Defenders
10 December 2019
Pursuers: A Smith QC, Gardiner; BLM
Defenders: Dunlop QC, Pugh; Clyde & Co
Introduction
[1] This case arises out of the tragic events of 22 December 2014, when a bin lorry owned
and operated by the pursuers crashed in the centre of Glasgow causing death and injury to a
large number of pedestrians. The lorry was being driven by Harry Clarke, an employee of
Glasgow City Council.
[2] These events have given rise to a variety of legal proceedings.
[3] A Fatal Accident Enquiry was held before Sheriff Beckett (as he then was) who
issued his determination in 2015 ([2015] FAI 30). However, the Sheriff's determination is not
Page 2 ⇓
2
admissible and may not be founded upon in the current proceedings (Inquiries into Fatal
Accidents and Sudden Deaths etc (Scotland) Act 2016 section 26(6)).
[4] The families of two of the deceased sought to bring a private criminal prosecution
against the driver, but their Bills for Criminal Letters were refused by the High Court
those who sought a private prosecution.
[5] A number of damages claims were made against the Council by those injured and
the families of those killed. The Council considered, on advice, that it was unlikely that the
actions could be defended successfully. The present case arises out of the claims made by
the family of the late Stephanie Tait. Her life partner, mother, father and sister raised actions
against the council in the All-Scotland Personal Injury Sheriff Court. In respect of these
actions, settlement was reached for payment by the council of a total sum of £860,000
together with expenses of £43,714.40. In the current action, the council sought to recover
these sums in their entirety from the defenders, who had been the previous employer of
Mr Clarke.
[6] The sole ground on which this case is pled is a narrow one. The case is pled solely on
the basis of section 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 (C 42).
During the course of the debate, I allowed the pursuers to amend the summons to clarify
that the pursuers' case was founded not in negligence but only on section 3. The
amendment introduced a conclusion for a declarator in the following terms:
"For declarator that the pursuers are entitled to such contribution by the defenders
pursuant to section 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act
1940, in respect of the sums sued for in conclusions 2 and 3 hereof, as the court may
deem just"
Page 3 ⇓
3
[7] The amendment also replaced the sole substantive plea in law with the following
plea:
"The defenders, being persons who, if sued, would have been liable for the breach of
duties owed by them to the pedestrians who were killed or injured when Harry
Clarke lost control of his vehicle, as condescended upon, are liable to contribute in
such proportion as the court may deem just to the damages and expenses which the
pursuers have had to pay and decree of declarator should accordingly be
pronounced as first concluded for"
[8] Section 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 provides
as follows:
"3 - Contribution among joint wrongdoers.
(1) Where in any action of damages in respect of loss or damage arising from any
wrongful acts or negligent acts or omissions two or more persons are, in pursuance
of the verdict of a jury or the judgment of a court found jointly and severally liable in
damages or expenses, they shall be liable inter se to contribute to such damages or
expenses in such proportions as the jury or the court, as the case may be, may deem
just: Provided that nothing in this subsection shall affect the right of the person to
whom such damages or expenses have been awarded to obtain a joint and several
decree therefor against the persons so found liable.
(2) Where any person has paid any damages or expenses in which he has been
found liable in any such action as aforesaid, he shall be entitled to recover 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, such contribution, if any, as the court may
deem just.
(3) Nothing in this section shall-
(a) apply to any action in respect of loss or damage suffered before the
commencement of this Act; or
(b) affect any contractual or other right of relief or indemnity or render
enforceable any agreement for indemnity which could not have been
enforced if this section had not been enacted."
Page 4 ⇓
4
The pursuers' case
[9] The pursuers pled that prior to being employed by the pursuers, Mr Clarke had been
employed for some years by the defenders as a passenger service vehicle driver. They
averred (article 5):
"On 7 April 2010, Clarke lost consciousness whilst driving a bus when engaged in
the course of his employment with the defenders. The type of episode from which
he suffered was similar to that which was ultimately suffered by him during the
events [of 22 December 2014]. The incident was investigated by the defenders and it
was known by them that he could present a risk to passengers and others should
there be a repetition of the event. In the course of the investigation by the defenders,
Clarke changed his story about where and how he had suffered the fainting episode.
Any reasonable investigation would have revealed that he was being dishonest to
those trying to assess his ability to drive."
[10] They further pled (article 7):
"Prior to offering Clarke employment, as is invariable practice, the pursuers would
have sought to obtain a written reference from the former employer (viz the
defenders). Although the reference document has been lost, it would have sought
and obtained information to the effect that the employee was reliable, and in
particular that there were no issues (in particular health issues) which may affect his
ability or suitability to be engaged in a driving job. Despite being aware of the
fainting episode referred to above, the defenders did not disclose that to the pursuer.
Had it been disclosed, the pursuer would either not have employed Clarke at all or
were he to have commenced his employment before the reference came in, would
terminate his employment or redeploy him in a non driving job, or only employed
him in a non driving job on account of the obvious danger to the public and other
employees should he faint once again whist in charge of a vehicle- The references
were obtained prior to 25 March 2011. Had accurate references (disclosing the
matters referred to above) been received prior to an offer of employment being
made, then no offer would have been made for a driving job, or in the alternative, no
offer of any employment with the pursuer. Had accurate references been received
after employment commenced, his employment would have been terminated, failing
which he would have been deployed in a non driving job. The failure by the
defenders to provide an accurate reference permitted Clarke to continue to drive a
vehicle which would not have been permitted by the pursuer had they known that
Clarke had fainted previously when employed by the defenders, that he had lied
about the circumstances, and had therefore lied in his application to the pursuer.
Each of these factors individually and cumulatively would have rendered Clarke to
be unsuitable for employment as a driver with the pursuer.
[11] They further averred (article 8):
Page 5 ⇓
5
"The defender knew or ought to have known that the purpose in the pursuer seeking
a reference was to assess Clarke's suitability as a driver of heavy vehicles (which
would have been made clear on the request for information). They knew or ought to
have known that this information was being requested to inter alia allow the pursuer
to assess whether Clarke could or should be employed, and if so whether he would
be permitted to drive heavy vehicles. It was accordingly their duty to either not
provide a reference at all (which would have resulted in Clarke not being engaged)
or if they did so, to provide a reference that was accurate. An accurate reference
would have stated that he had suffered the fainting episode in April 2010. Had
either or both of these facts been disclosed, Clarke would not have been employed by
the defenders in the capacity of a heavy vehicle driver, and the accident in December
2014 would not have occurred."
Debate
[12] The case called before me for a debate. The defenders invited me to dismiss the case.
The pursuers invited me to allow a proof before answer.
[13] There were two main issues in the debate:
1. 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.
2. If the answer to the first issue is yes, did the defenders in this case have a duty of
care to the injured person.
1. 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.
Submissions for the defenders
[14] Counsel for the defenders submitted that the claim under the 1940 Act was
irrelevant. For a claim to arise thereunder, both parties required to be under a relevant duty
to the injured person. The pleadings did not set up any relevant suggestion that, when
giving the alleged reference in which the claim was predicated, the defenders owed a duty
of care to those victims (which in the present circumstances would amount to a duty of care
Page 6 ⇓
6
to at least the entire population of and any visitors to Glasgow at any point during the
anticipated working life of Clarke).
Submissions for the pursuers
[15] The pursuers submitted that for the pursuers to obtain a relief under section 3 the
pursuers required to establish negligence on the part of the defenders. That negligence
could be either because the defenders were liable to the injured parties or because the
defenders were liable to the pursuer (Comex Houlder Diving Ltd v Colne Fishing Co Ltd 1987
SC 85). Subsection (2) should be read as a standalone provision which entitled the pursuers
to make a direct case against the defenders. (Farstad Supply AS v Enviroco Ltd 2010
SC (UKSC) 87.)
Discussion and decision
[16] As Lord Keith explained in the Comex case at p 121:
"Section 3 of the Act of 1940 changed the law in a number of ways. First of all, it
made it possible, where two or more persons had been convened as defenders in an
action seeking damages against them jointly and generally on the ground of
wrongful acts or negligence, for their liability inter se for the damages to be
apportioned among them in that action. Further, it enabled the apportionment to be
made not on a pro rata basis but in such proportions as might seem just. These
changes were a development of the law as stated in Palmer's case. Then by subsec. (2)
a person who had been found liable in damages in an action on similar grounds was
given the right to recover a just proportion of the damages he had paid from any
other person who, if sued, might also have been held liable for the same loss. This
gave statutory force to the law as it had been held to be by Lord Murray in Glasgow
Corporation v John Turnbull & Co., but extended it so as to enable recovery not merely
of a pro rata proportion of the damages, but of such contribution thereto as might
seem just."
[17] In Farstad Supply AS v Enviroco Ltd, Lord Clarke referred to Lord Keith's explanation
and went on to say that "the essential purpose of the section was to replace the common law
Page 7 ⇓
7
pro rata rule with a flexible rule of apportionment according to the court's view of what was
just".
[18] Lord Clarke then gave consideration to section 3(2). He stated:
"[11] I turn to section 3(2). It applies to a claim for contribution by a person who
has been held liable "in any such action as aforesaid". The reference to "any such
action" is a reference to the action identified in subsec (1) and is thus a reference to an
action by a pursuer against a defender "in respect of loss or damage arising from any
wrongful acts or negligent acts or omissions" by the defender. If a defender, as such
a wrongdoer, has been held liable to pay damages or expenses to a pursuer and if he
pays the damages he has a right to recover such contribution, if any, as the court may
deem just 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".
[12] As I see it, the subsection is specifically intended to deal with the position
where there are two actions. In the first action a wrongdoer A is held liable in
damages or expenses to the pursuer and A then pays the pursuer and begins a
separate action against a second person B who, if sued in the first action, might have
been held liable to the pursuer in the first action. However, no one suggested that
the subsection was limited to such a case. It was not suggested that the claim for
contribution could not be made by third-party proceedings in the same action, even
though no liability for contribution can arise until A has paid the pursuer."
[19] Lord Hope agreed with Lord Clarke and stated:
"[37] The meaning to be given to the words "if sued" in sec 3(2) of the Law Reform
(Miscellaneous Provisions) (Scotland) Act 1940 has puzzled generations of Scots
lawyers ever since that provision was enacted. No doubt the draftsman saw no need
to elaborate. He must have assumed that sec 3(1) and sec 3(2) would be read
together, and it is obvious that the second subsection takes its meaning from the first.
Although sec 3(2) does not say this in so many words, the phrase "found liable in any
such action as aforesaid" is a sufficient indication. It must refer back to the phrase "in
any action of damages" in sec 3(1). So the situation that is contemplated in both cases
is one where the party who seeks the relief has been sued to judgment. "If sued" in
sec 3(2) must therefore mean, in regard to the third party, that it is to be assumed that
he has been sued to judgment also. But this approach to the meaning of these words
still leaves some questions unanswered.
[38] It is normal practice for the third-party procedure to be used, as it has been in
this case, by a defender to claim relief under sec 3(2) from a party whom the pursuer
has not called as a defender in the same action -.
[39] This procedure enables questions arising out of one matter including claims
by a defender for relief against a third party to be dealt with in one action, thus
saving time and expense .... As Lord Clarke points out, sec 3(2) contemplates that no
Page 8 ⇓
8
liability for contribution can arise until the defender has paid the pursuer. But that is
not how the third party procedure works in practice. It is not necessary for the
defender first to be found liable and then to pay the pursuer before making his claim
for contribution in the same action.
[40] As the Lord Ordinary has shown in his admirably succinct opinion, several
points arising from the phrase "if sued" have been settled by judicial decision. First,
as "if sued" means "if sued to judgment", the defender is not deprived of his right of
relief if the pursuer, having originally sued the third party as well, abandons his
action against the third party so that he is released from the process without having a
judgment pronounced in his favour: Singer v Gray Tool Co (Europe) Ltd. As
Lord President Emslie described this situation in that case at (p 151), the third party
has merely been the beneficiary of a formal order pronounced as a result of the
pursuer's decision to prosecute the action against him no further. Secondly, the
defender is not disabled from seeking relief against the third party by reason of the
fact that the pursuer's claim against him has been held to have been, or would be,
time-barred: Dormer v Melville Dundas & Whitson Ltd. This is because the words "if
sued" assume that the third party has been "relevantly, competently and timeously
sued" by the pursuer - in other words, that all the essential preliminaries to a
determination of the other party's liability have been satisfied Central SMT Co Ltd v
Lanarkshire County Council per Lord Keith p 460,; see also Singer p 151; Comex
Houlder Diving Ltd v Colne Fishing Co Ltd p 19; Taft v Clyde Marine Motoring Co Ltd per
Lord Dervaird p 175,. The question whether the third party has been sued
"relevantly, competently and timeously" falls to be tested at the date when the
pursuer sued the person who is seeking relief. It is enough that he could have sued
the third party at that date: (George Wimpey & Co Ltd v British Overseas Airways Corp,
per Lord Reid p 186, Dormer v Melville Dundas & Whitson Ltd, pp 299-300)."
[20] In my opinion for the 1940 Act to apply both parties must be liable to the injured
person. Section 3(2) operates in situations where both A and B are liable to C. It does not
operate where only A is liable to C, but B is liable to A.
[21] The purpose of section 3 is to apportion liability between joint wrongdoers so that
each wrongdoer pays a share of the damages. It permits one wrongdoer who has paid out
in full to recover an appropriate proportion from another wrongdoer. This is apparent from
the wording of section 3(2) which states that "he shall be entitled to recover 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". "Action" is a reference back to the wording of section 3(1)
which states "any action of damages in respect of loss or damage arising from any wrongful
Page 9 ⇓
9
acts or negligent acts or omissions two or more persons are, in pursuance of the verdict of a
jury or the judgment of a court found jointly and severally liable" Such wording makes it
clear that the action referred to is one where two or more persons are jointly and severally
liable. Such wording can apply only where both wrongdoers are liable to the same injured
parties. If only A is liable to C, but B is liable to A, then it cannot be said that A and B are
jointly and severally liable. As Lord Clarke said in Farstad (para [17]):
"For the reasons I have explained, the whole basis of the right to contribution under
subsecs (1) and (2) of sec 3 is that both.. the defender and-the second party or third
party as the case may be, are liable to the [injured party]. If the [second party] is not
liable to the [injured party] the whole basis of its liability to contribution is removed"
2. If the answer to the first issue is yes, did the defenders in this case have a duty of care
to the injured person.
Submissions for the defenders
[22] Counsel for the defenders submitted that it was not the case that when an employer
gave a reference the employer owed a duty of care to anyone with whom that employee
might interact whilst working with the new employer. He referred to Caparo Industries Plc v
Submissions for the pursuers
[23] Counsel for the pursuers invited me to allow a proof before answer. It could not be
said at this stage that no duty of care arose: the case was not bound to fail (Jamieson v
Jamieson 1952 SC (HL) 44). What the pursuers offered to prove was that a reference was
Page 10 ⇓
10
requested, the defenders chose to provide it, and the reference failed to mention the prior
fainting episode and the dishonesty surrounding it. The purpose of the reference was the
suitability to drive. The event leading to the loss, injury or damage was intimately
connected to the absence of a full and accurate reference. He referred to Caparo Industries Plc
v Dickman, Spring v Guardian Assurance Plc and Thomson v Scottish Ministers.
Discussion and decision
[24] In order to succeed in its claim under section 3, the pursuers will have to establish
that the defenders were directly liable to the injured party in negligence in respect of a
reference given by the defenders to the pursuers. The issue which came before me for
debate was whether as a matter of law, in the circumstances of this case, a previous
employer who gives a reference to a new employer can be liable in negligence to a third
party who is injured by the employee during the course of his new employment.
[25] It is noteworthy that in this case the pursuers have not produced the reference which
they rely on and instead aver that it has been lost. Indeed, they do not directly aver that a
reference was given at all or what it said. Instead, they aver that a reference would have
been sought and it would have sought and obtained information that there were no health
issues which may affect Mr Clarke's ability or suitability to be engaged in a driving job. For
the purposes of debate, I require to take the pursuers averments pro veritate, in other words
on the assumption that they are true. At this stage I have heard no evidence and come to no
conclusion as to whether the pursuers averments are true or not, and in particular have
come to no conclusion whether any reference was in fact given and if so what in fact it said.
I have had no regard to the determination of the Fatal Accident Inquiry, which is
inadmissible in the current action. The test is whether the pursuers' case will necessarily fail
Page 11 ⇓
11
even if all the pursuers' averments are proved (Jamieson v Jamieson). If I find that the test is
met, the case will fall to be dismissed. If I find that the test is not met, the case will proceed
to a proof before answer at which evidence will be led.
[26] The question of whether the giver of an employment reference owes a duty of care to
a third party, being neither the employee nor the new employer, for omitting, in the
reference, to warn the new employer of a risk of physical injury to the third party, is a novel
one. I was not referred to any authorities or academic discussion on the issue.
[27] The case of Spring v Guardian Assurance established that an employer giving an
employment reference owes to the employee who is the subject of the reference a duty of
care and would be liable to the employee in negligence if he failed to do so and the
employee suffered economic damage. In the present case, the court is being asked to go
further and find that there is a duty of care to a third party who is neither the employee nor
the recipient of the reference. This is an exercise which must be approached with great care.
As Lord Goff said in Spring:
"I wish further to add that it does not necessarily follow that, because the employer
owes such a duty of care to his employee, he also owes a duty of care to the recipient
of the reference. The relationship of the employer with the recipient is by no means
the same as that with the employee; and whether, in a case such as this, there should
be held, as (as was prima facie held to be the case on the facts of the Hedley Byrne case
itself) a duty of care owed by the maker of the reference to the recipient is a point on
which I do not propose to express an opinion, and which may depend on the facts of
the particular case before the court." (p 320D-E)
Nor does it necessarily follow that the maker of a reference owes a duty of care to a third
party who is not the recipient of the reference. When one looks at the circumstances which
led Lord Goff to conclude that a duty was owed to the employee, these are very far from the
circumstances of a third party:
"The employer is possessed of special knowledge, derived from his experience of the
employee's character, skill and diligence in the performance of his duties while
Page 12 ⇓
12
working for the employer. Moreover, when the employer provides a reference to a
third party in respect of his employee, he does so not only for the assistance of the
third party, but also, for what it is worth, for the assistance of the employee. Indeed,
nowadays it must often be very difficult for an employee to obtain fresh employment
without the benefit of a reference from his present or a previous employer. It is for
this reason that, in ordinary life, it may be the employee, rather than a prospective
future employer, who asks the employer to provide the reference; and even where
the approach comes from the prospective future employer, it will (apart from special
circumstances) be made with either the express or the tacit authority of the
employee. The provision of such references is a service regularly provided by
employers to their employees; indeed, references are part of the currency of the
modern employment market. Furthermore, when such a reference is provided by an
employer, it is plain that the employee relies upon him to exercise due skill and care
in the preparation of the reference before making it available to the third party. In
these circumstances, it seems to me that all the elements requisite for the application
[28] In the current action, the pursuers' case, taking their averments as true, is that the
giver of a reference has failed to warn the recipient of the reference about potential physical
danger to third parties. It is instructive therefore to consider other cases where the courts
have considered whether there is a duty to warn of physical danger and whether there is a
duty of care towards third parties in respect of physical harm.
[29] In Mitchell v Glasgow City Council, a local authority tenant died from wounds
received in an assault on him by another tenant who had previously threatened to kill him.
His widow and daughter raised an action for damages against the local authority on the
ground inter alia that the authority had not warned the deceased of the possible risk from his
attacker. That ground was held to be irrelevant.
[30] In rejecting a "beguilingly simple" submission that there was a duty to warn and that
duty arose because the harm to the deceased was reasonably foreseeable, Lord Hope said:
"[15] Three points must be made at the outset to put the submission into its proper
context. The first is that foreseeability of harm is not of itself enough for the
imposition of a duty of care: see, for example, Dorset Yacht Co Ltd v Home Office [1970]
AC 1004, 1037 - 1038, per Lord Morris of Borth-y-Gest; Smith v Littlewoods
Organisation Ltd (reported in the Session Cases as Maloco v Littlewoods Organisation
Page 13 ⇓
13
[1989] AC 53, 60, per Lord Keith of Kinkel. Otherwise, to adopt Lord Keith of
Kinkel's dramatic illustration in Yuen Kun Yeu v Attorney General of Hong Kong [1988]
AC 175,192, there would be liability in negligence on the part of one who sees
another about to walk over a cliff with his head in the air, and forebears to shout a
warning. The second, which flows from the first, is that the law does not normally
impose a positive duty on a person to protect others. As Lord Goff of Chieveley
explained in Smith v Littlewoods Organisation Ltd, 76, the common law does not
impose liability for what, without more, may be called pure omissions. The third,
which is a development of the second, is that the law does not impose a duty to
prevent a person from being harmed by the criminal act of a third party based
simply upon foreseeability: Smith v Littlewoods Organisation Ltd, 77- 83, per Lord Goff.
[16] The context is therefore quite different from the case where a person is
injured in the course of his employment or in a road traffic accident. In cases of that
kind it can be taken for granted that the employer owes a duty of care to the person
who is in his employment or that a duty is owed to other road users by the driver of
a vehicle which causes an accident. If commonplace situations of that kind had to be
analysed, the conclusion would be that the duty is owed not simply because loss,
injury or damage is reasonably foreseeable. It is because there is a relationship of
proximity between the employer and his employees and the driver and other road
users. This is sufficient in law to give rise to a duty of care. The duty is created by
the relationship, and the scope of the duty is determined by what in the context of
that relationship is reasonably foreseeable. In such cases this is so obvious that there
is no need to ask whether it is fair, or whether it is just and reasonable, that the
pursuer should recover damages -
[20] We are dealing here with an allegation that it was the defenders' duty to
prevent the risk of harm being caused to the deceased by the criminal act of a third
party which they did not create and had not undertaken to avert. The point at issue
is whether the defenders were under a duty in that situation to warn the deceased
that there was a risk that [the other tenant] would resort to violence. I agree that
cases of this kind which arise from another's deliberate wrongdoing cannot be
founded simply upon the degree of foreseeability. If the defender is to be held
responsible in such circumstances it must be because, as Lord Reed suggests in
para 97 the situation is one where it is readily understandable that the law should
regard the defender as under a responsibility to take care to protect the pursuer from
that risk."
[31] The House of Lords applied the tripartite test articulated by Lord Bridge in Caparo
Industries (p 618), namely (1) foreseeability (2) proximity and (3) fairness, justice and
reasonableness. They found that the test had not been met in the circumstances of the case
(Lord Hope at paras [26]-[29], Lord Rodger at para [62-3], Lady Hale at para [74-77]).
Lord Hope went on to say:
Page 14 ⇓
14
"The situation would have been different if there had been a basis for saying that the
defenders had assumed a responsibility to advise the deceased of the steps that they
were taking, or in some other way had induced the deceased to rely on them to do
so. It would then have been possible to say not only that there was a relationship of
proximity but that a duty to warn was within the scope of that relationship. But it is
not suggested in this case that this ever happened ... I would conclude therefore that
it would not be fair, just or reasonable to hold that the defenders were under a duty
to warn the deceased of the steps that they were taking, and that the common law
case that is made against them is irrelevant. I would also hold, as a general rule, that
a duty to warn another person that he is at risk of loss, injury or damage as the result
of the criminal act of a third party will arise only where the person who is said to be
under that duty has by his words or conduct assumed responsibility for the safety of
the person who is at risk." (para [29])
[32] Mitchell v Glasgow City Council was considered in Thomson v Scottish Ministers. A
prisoner on leave from prison murdered a childhood friend. The friend's mother sued the
prison authorities for damages on the ground that the Scottish Prison Service owed a duty of
care to the deceased and other members of the public not to release prisoners on short term
leave if such prisoners presented a real and immediate danger to the public. The action was
dismissed as irrelevant. The Lord Justice Clerk, giving the opinion of the Second Division,
endorsed the "tripartite test" as trite law (para [48]). He went on to warn about the dangers
of relying on statements of principle at a high level of abstraction para [48] and stated:
"Each of the elements of foreseeability and proximity are necessary, if not sufficient,
ingredients for the imposition of a duty of care. Policy considerations inform both of
these two discrete but interlinked elements (Mitchell v Glasgow City Council
Lord Hope para [16]). Although it would be possible to make a theoretical appraisal
of the pursuer's situation by the pure application of principles of high abstraction,
the practical solution for the courts in a specific case lies in analysing the particular
circumstances of the case according to the category into which it falls; that category
in the pursuer's case is, as already noted, that involving the liability of public
custodians for the criminal actions of those in their care."
[33] The Lord Justice Clerk analysed the cases in that category, summarising the law as
follows:
" [56] The court is content to proceed on the basis of the dicta expressed in all of the
cases quoted, even if there is some variance in the language used. In order to
succeed, the pursuer must establish a special relationship which exposed the
Page 15 ⇓
15
deceased to a particular risk of damage as a result of negligence by the defenders in
the context of that relationship (ie Dorset Yacht Co, Lord Diplock at 1070) or, put in
another way, that she was the subject of a special or distinct risk as a consequence of
the defender's actions (ie the majority in Couch v Attorney General at para [112]).
Where there is an immediate risk to a person's life as a consequence of a third party's
predictable activity, it may not be necessary to identify a particular class of persons
beyond those under immediate threat (eg O'Dwyer v Chief Constable, Royal Ulster
Constabulary, at 412)."
[34] Further reference to categories of previous cases can be found in Caparo Industries.
Lord Oliver at p635B-D attempted a non-exhaustive broad categorisation of the type of
situation in which liability had been established. His first category was cases where what
was complained of was the failure to prevent the infliction of damage by the act of the third
applicable in the current case, was failure to perform properly a statutory duty claimed to
have been imposed for the protection of the plaintiff either as a member of a class or as a
member of the public (such as the Anns case, Ministry of Housing and Local Government v
Sharp [1970] 2 Q.B. 223, Yuen Kun Yeu v Attorney-General of Hong Kong [1988] A.C. 175). His
third category was the making by the defender of some statement or advice which had been
communicated, directly or indirectly, to the pursuer and upon which he had relied. The
Caparo case fell into the third category. In Caparo, shareholders and potential future investors
in a company sought damages from the company's auditors claiming they were negligent in
carrying out an audit and in a report to the company. Lord Bridge reviewed the case law
then drew a distinction between liability to the recipient of a statement and a third party:
"The salient feature of all these cases is that the defendant giving advice or
information was fully aware of the nature of the transaction which the plaintiff had
in contemplation, knew that the advice or information would be communicated to
him directly or indirectly and knew that it was very likely that the plaintiff would
Page 16 ⇓
16
rely on that advice or information in deciding whether or not to engage in the
transaction in contemplation. In these circumstances the defendant could clearly be
expected, subject always to the effect of any disclaimer of responsibility, specifically
to anticipate that the plaintiff would rely on the advice or information given by the
defendant for the very purpose for which he did in the event rely on it. So also the
plaintiff, subject again to the effect of any disclaimer, would in that situation
reasonably suppose that he was entitled to rely on the advice or information
communicated to him for the very purpose for which he required it. The situation is
entirely different where a statement is put into more or less general circulation and
may foreseeably be relied on by strangers to the maker of the statement for any one
of a variety of different purposes which the maker of the statement has no specific
reason to anticipate. To hold the maker of the statement to be under a duty of care in
respect of the accuracy of the statement to all and sundry for any purpose for which
they may choose to rely on it is not only to subject him, in the classic words of
Cardozo C.J. to "liability in an indeterminate amount for an indeterminate time to an
indeterminate class:" see Ultramares Corporation v Touche (1931) 174 N.E. 441, 444; it
is also to confer on the world at large a quite unwarranted entitlement to appropriate
for their own purposes the benefit of the expert knowledge or professional expertise
attributed to the maker of the statement. Hence, looking only at the circumstances of
these decided cases where a duty of care in respect of negligent statements has been
held to exist, I should expect to find that the "limit or control mechanism - imposed
upon the liability of a wrongdoer towards those who have suffered economic
damage in consequence of his negligence" rested in the necessity to prove, in this
category of the tort of negligence, as an essential ingredient of the "proximity"
between the plaintiff and the defendant, that the defendant knew that his statement
would be communicated to the plaintiff, either as an individual or as a member of an
identifiable class, specifically in connection with a particular transaction or
transactions of a particular kind (e.g. in a prospectus inviting investment) and that
the plaintiff would be very likely to rely on it for the purpose of deciding whether or
not to enter upon that transaction or upon a transaction of that kind." (p 620H to
621F)
[35] Another example of Lord Bridge's third category is NRAM Ltd v Steel. In that case, a
lender sought damages from a borrower's solicitor in respect of a misstatement in an email
sent by the borrower's solicitor to the lender. Lord Hope identified the governing principle
as assumption of responsibility (para [25]). He went on to inquire into the existence of an
assumption of responsibility by a solicitor to the opposite party and restored the
Lord Ordinary's interlocutor dismissing the claim.
[36] In Robinson v West Yorkshire Chief Constable, a passer-by was injured during an
attempted arrest of a suspected drug dealer by police officers. The court held that the police
Page 17 ⇓
17
officers had owed a duty of care towards pedestrians, including the claimant, in the
immediate vicinity when the arrest had been attempted. Lord Reed stated:
"34. ... public authorities, like private individuals and bodies, are generally under
no duty of care to prevent the occurrence of harm: as Lord Toulson JSC stated in
liability for pure omissions' (para 97). This "omissions principle" has been helpfully
summarised by Tofaris and Steel, -Negligence Liability for Omissions and the Police'
(2016) 75 CLJ 128:
-In the tort of negligence, a person A is not under a duty to take care to
prevent harm occurring to person B through a source of danger not created
by A unless (i) A has assumed a responsibility to protect B from that danger,
(ii) A has done something which prevents another from protecting B from
that danger, (iii) A has a special level of control over that source of danger, or
(iv) A's status creates an obligation to protect B from that danger.'
35. As that summary makes clear, there are certain circumstances in which public
authorities, like private individuals and bodies, can come under a duty of care to
prevent the occurrence of harm: see, for example, Barrett v Enfield London Borough
619, as explained in Gorringe at paras 39-40. In the absence of such circumstances,
however, public authorities generally owe no duty of care towards individuals to
confer a benefit upon them by protecting them from harm, any more than would a
private individual or body: see, for example, Smith v Littlewoods Organisation Ltd
[2009] UKHL 11; [2009] AC 874, concerning a public authority -
37. A further point ... is that public authorities, like private individuals and
bodies, generally owe no duty of care towards individuals to prevent them from
being harmed by the conduct of a third party: see, for example, Smith v Littlewoods
para 97 Lord Toulson explained the point in this way:
-It is one thing to require a person who embarks on action which may harm
others to exercise care. It is another matter to hold a person liable in damages
for failing to prevent harm caused by someone else.' (para 97)
There are however circumstances where such a duty may be owed, as Tofaris and
Steele indicated in the passage quoted above. They include circumstances where the
public authority has created a danger of harm which would not otherwise have
existed, or has assumed a responsibility for an individual's safety on which the
individual has relied. The first type of situation is illustrated by Dorset Yacht, and in
relation to the police by the case of Attorney General of the British Virgin Islands v
Hartwell [2004] 1 WLR 1273, discussed below. The second type of situation is
Page 18 ⇓
18
illustrated, in relation to the police, by the case of An Informer v A Chief Constable
[37] Lord Reed also gave guidance on how courts should approach the question of
whether a duty of care exists:
"29. In the ordinary run of cases, courts consider what has been decided
previously and follow the precedents (unless it is necessary to consider whether the
precedents should be departed from). In cases where the question whether a duty of
care arises has not previously been decided, the courts will consider the closest
analogies in the existing law, with a view to maintaining the coherence of the law
and the avoidance of inappropriate distinctions. They will also weigh up the reasons
for and against imposing liability, in order to decide whether the existence of a duty
of care would be just and reasonable."
[38] Lord Mance summarised the position as follows:
"83. As Lord Reed JSC demonstrates, it is unnecessary in every claim of
negligence to resort to the three-stage analysis (foreseeability, proximity and fairness,
justice and reasonableness) identified in Caparo Industries Ltd v Dickman [1990] 2 AC
605. There are well-established categories, including (generally) liability for causing
physical injury by positive act, where the latter two criteria are at least assumed. The
concomitant is that there is, absent an assumption of responsibility, no liability for
negligently omitting to prevent damage occurring to a potential victim."
[39] The duty of care for which the pursuer contends for in this case is a duty of care
owed by the giver of an employment reference to a third party, being neither the employee
nor the new employer, for omitting, in the reference, to warn the new employer of a risk of
physical injury to the third party. The question of whether that duty of care exists as a
matter of law has not been previously decided. Nor in my opinion does it fall within, nor be
closely analogous to, one of the categories of cases previously decided. It bears similarities
but also dissimilarities to categories of duties of care which have been established in
previously decided cases. The alleged duty arises out of a reference, but unlike Spring the
duty is not owed to the employee. The alleged duty arises out of negligent misstatement, but
unlike Caparo the misstatement was not relied on by the person to whom the duty is said to
be owed. Like Robinson, the source of danger was not created by the pursuer, but in the
Page 19 ⇓
19
present case the injured party did not rely on the pursuers for safety. The duty of care
contended for also bears similarities to categories of duties of care which previous cases
have found not to exist. The alleged duty was in respect of physical injury by an ex-
employee to members of the public, and, like Mitchell, the pursuers had neither created nor
undertaken to avert the risk of that injury.
[40] As the duty of care contended neither falls within nor is closely analogous to
categories in pre-existing cases, it is necessary to consider the matters identified by
Lord Mance in the passage quoted in para [38] above, namely the tripartite Caparo test of (1)
foreseeability, (2) proximity and (3) fairness, justice and reasonableness, and also
assumption of responsibility.
[41] In my opinion the test of reasonable foreseeability is met in respect of the duty of
care contended for by the pursuers in this case. It is reasonably foreseeable that if a
reference omits reference to a risk of the employee causing harm in the course of
employment, then that harm may occur in the course of his work with the new employer.
However, as Lord Hope identified in the passage from Mitchell quoted in para [30] above,
foreseeability is not enough for the imposition of a duty of care. There requires to be a
relationship of proximity. In my opinion in the current case there is no such proximity as
would give rise to a duty of care. 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. The relationship is far
Page 20 ⇓
20
less proximate than that in Mitchell, where the court held that there was no duty of care
despite the defender being the landlord of both the injured party and the attacker and the
defender being aware of prior threats.
[42] Further, in my opinion it would not be just, fair and reasonable to impose the duty of
care contended for. Employment references perform a valuable function in the employment
field, for the reasons explained by Lord Goff in Spring and referred to in para [27] above. A
good reference can be of considerable benefit both to an individual seeking work and to a
potential employer assessing which applicant is best placed to become a useful and valued
employee. The giver of a reference naturally has in mind the individual who is the subject
of the reference and the recipient of the reference. The giver of the reference does not
naturally have in mind all the persons who will come into contact with the employee during
the course of his new employment. In the case of the driver of a bin lorry, that would
include not only the driver's co-workers but also any member of the public who was out on
the streets of Glasgow at any time on any day when Mr Clarke's route took him to that same
street. 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.
[43] Finally, I turn to consider whether there has been an assumption of responsibility by
the giver of the reference to the injured party. In my opinion this is not a case where there
has been an assumption of responsibility. As Lord Reed explained in Robinson, in the
Page 21 ⇓
21
passages set out in para [36] above, private individuals generally owe no duty of care
towards individuals to prevent them being harmed by the conduct of a third party.
However such a duty can be owed where a person has assumed responsibility for an
individual's safety on which the individual has relied. The defenders have not assumed
responsibility for the safety of the injured party in the current case. There require to be
limits on the scope of those to whom the giver of a reference assumes responsibility. In my
opinion, the safety of third parties whom the subject of a reference may come across in the
course of his new employment falls outwith that limit. The reference is being given for the
benefit of the subject and the new employer. The injured person, being entirely unaware of
the existence and the contents of the reference, has not in any way relied on it. It cannot be
said that by granting a reference which makes no mention of an extremely broad class of
members of the public and of which the members of the public were unaware, that the
defenders have assumed responsibility to these members of the public.
[44] For all these reasons I find that the defenders did not owe a duty of care to the
injured party.
[45] It follows from this that section 3 of the 1940 Act does not apply and the action falls
to be dismissed.
Other matters
[46] In the light of my decision, it is not necessary to decide the other submissions raised
by counsel for the defenders. However for the sake of completeness I shall deal with these
briefly.
[47] Counsel for the defenders submitted that esto the defenders owed a duty of care and
the duty was to take reasonable care in all the circumstances. The pursuers had admitted
Page 22 ⇓
22
the defender's averments that doctors examining Mr Clarke prior to the giving of the
reference considered it unlikely that he would suffer another similar episode. In these
circumstances there was no duty to disclose the first episode in the reference.
[48] Had I not found the action to be irrelevant, I would found that this was a matter for
proof before answer. This matter cannot be resolved without inquiry into the facts and
circumstances surrounding the medical opinions, including the pursuers' averments to the
effect that Mr Clarke was dishonest to the doctors.
[49] Counsel for the defenders also criticised the pursuers' averments in relation to
certain matters of specification which had been identified in calls in the defences which had
not been answered. I would not have dismissed the action on these points of specification
but would have taken the question of specification forward through commercial court
procedure.
[50] The issues covered in these calls included the way in which the pursuers had pled
their loss. The pursuers sought to recover the sum for which they had settled the sheriff
court action. Particular criticism was made of lack of specification as to how that settlement
figure had been arrived at. In my opinion it is not enough for the pursuers to settle an action
with the injured party and then assume that whatever figure they settled at is recoverable by
the pursuers from another party. There are many reasons, operating on both parties to a
settlement, which can result in an agreement being made for a figure different from that to
which a party is entitled as matter of law and so would ultimately be awarded by the court
if the action proceeded. However, I would not have dismissed the action on this ground at
this stage. I would have used the commercial court procedures to ensure that the pursuers'
averments were expanded to give full specification of the quantification of the claim.
Page 23 ⇓
23
Order
[51] The logic of the foregoing is that I should uphold the defenders' first plea in law and
dismiss the action. However, while the case was at avizandum, there were further
developments. At debate, the pursuers' position was clear: they periled their case on the
1940 Act, and were not pleading direct case against the defenders on negligence. Indeed,
during the course of the debate they tendered the Minute of Amendment which clarified
their pleadings and substituted a new first plea in law to put beyond any doubt that that
was their position. I allowed the amendment. The debate, and indeed this opinion,
proceeded on the basis of that position. Subsequently, while the case was at avizandum, the
pursuers lodged a minute of amendment introducing a new alternative direct case of
negligence. The pursuers enrolled a motion to allow the minute of amendment to be
received. When the motion called before me, parties were agreed that I should continue the
motion to a date to be afterwards fixed subsequent to the issue of this opinion. In the light
of these developments, I shall make no substantive order at present, but will put the case out
by order for discussion as to how to proceed in the light of this opinion and the continued
motion.