Former employer of Glasgow bin lorry crash driver found not liable to pay settlement costs to Glasgow City Council

Lord Ericht

About this case:

• Citation:
  [2022] CSOH 9
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Ericht

It was averred by the pursuer that First Glasgow Ltd owed it a duty of care in respect of the employment reference it provided when Harry Clarke was hired. However, neither party was able to locate a copy of the original reference. The defender submitted that in its absence the pursuer was unable to prove its case.

The case was heard in the Outer House of the Court of Session by Lord Ericht. Smith QC appeared for the pursuer and the Dean of Faculty, Roddy Dunlop QC, for the defender. Mr Clarke did not appear as a witness for either party.

Onus on pursuer

Mr Clarke had been employed by the defender as a bus driver from October 2008 to December 2010. In April 2010, he briefly fell unconscious at the wheel while stationary at a bus stop, which was later determined to be the result of a vasovagal attack. Mr Clarke was told he was not required to inform the DVLA of the incident and took a few weeks off work.

The pursuer used a form, App7, for the provision of employment references. The App7 contained pre-printed questions, two of which related to any sickness absence taken by the applicant in the past two years and “any relevant information” that a prospective employer should be aware of. It was averred that in its answers the defender did not provide information that Mr Clarke had taken a sickness absence in 2010 and did not state that he had lost consciousness while in charge of a bus in April 2010.

It was the pursuer’s case that the answers given by the defender gave a misleading impression that Mr Clarke had not taken any absences in the two years prior to termination of his employment with the defender. Had that information been included in the App7, they would not have hired Mr Clarke as he would present a risk of passing out at the wheel.

The pursuer’s evidence was that the form was sent by post to the defender’s HR department as well as electronically, but despite extensive searches of both parties’ records, no copy of the reference could be found, including in Mr Clarke’s personnel file. Nonetheless, it sought to lead witnesses who could confirm that a reference had been sought, although none of them could recall seeing it personally, as well as evidence of correspondence between the parties concerning the reference.

It was the defender’s position that the pursuer had not established it could competently bring proceedings standing the failure to produce the original reference. The onus was on the pursuer to prove what that reference said, and it had not managed to do so. Further, the pursuer had led no evidence that knowledge of the sickness absence would have led to Mr Clarke’s dismissal. It added that any reference provided would likely have been in the form of a factual letter rather than responses to the questions due to a change in its HR practices.

Formidable challenges

In his decision, Lord Ericht said of the circumstances of the absence of the reference: “I am satisfied that the reference was lost in circumstances which do not give rise to a suspicion that the pursuer is seeking to produce an impression which the document would not create. I am also satisfied that the pursuer has bona fide searched for it.

He continued: “There is no copy of any reference from [the defender] in the paper or electronic records of either the pursuer of the defender. Nor do these records contain any email or letter stating that such a reference is enclosed or attached. It is a remarkable feature of this case that not a single witness spoke to remembering having seen a reference.”

Lord Ericht allowed secondary evidence to be admitted as to the contents of the reference but added: “The pursuer still faces formidable challenges in proving its case. Where, as here, a pursuer’s case turns on the precise wording of a document which is not produced, then clear and cogent evidence will be required that the document exists and what the wording said.”

Assessing the evidence of the parties’ witnesses, he said: “There was no evidence from the Pulse system, Spreadsheet, emails or any other source that anyone from the pursuer had acted on the information received from Mr Clarke that a reference would require to be requested.”

He concluded: “The reference would not have been in the form of the pursuer’s App7 but would have been in the form of the defender’s pro forma. That pro forma was in short form and does not encompass the misrepresentations on which the pursuer founds its case, and in any event contains an express disclaimer of liability.”

Lord Ericht therefore concluded on the facts that the defender had not provided a reference to the pursuer for Mr Clarke and granted decree of absolvitor.