Glasgow City Council action to recover damages from bin lorry crash driver’s former employer dismissed 

The local authority claimed that the previous employer of lorry driver Harry Clarke was also liable to the victims because it supplied a job reference in support of his application for employment with the council, but a judge in the Court of Session ruled that the defenders “did it owe a duty of care to the injured parties”.

Bin lorry crash

Lord Ericht heard that the case arose out of the tragic events of 22 December 2014, when a bin lorry owned and operated by the pursuers Glasgow City Council and being driven by council employee Harry Clarke crashed in the centre of Glasgow causing death and injury to a large number of pedestrians. 

A fatal accident inquiry in 2015 found that Mr Clarke lost control of the lorry after fainting at the wheel, having previously suffered a similar episode when he was a bus driver employed by the defenders First Glasgow, which failed to provide a full and accurate reference to the pursuers when Mr Clark applied for a job with the council.

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 (Stewart v Payne 2017 JC 155). 

A number of damages claims were made against the pursuers by those injured and the families of those killed, and the council considered, on advice, that it was unlikely that the actions could be defended successfully. 

The present case arose out of the claims made by the family of the late Stephanie Tait, whose partner, mother, father and sister raised actions against the local authority 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.

‘Defenders also liable’

The pursuers’ case was pled solely on the basis of section 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940, which provides that: 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 to contribute to such damages or expenses in such proportions as the court may deem just.

The pursuers’ position was, in terms of section 3(2) of the 1940 Act, that the defenders, had they been sued, would have been liable in damages for the breach of duties owed to the pedestrians who were killed or injured in the fatal crash, and were therefore “liable” to contribute in such proportion as the court may deem just to the damages and expenses which the pursuers had to pay.

The pursuers claimed that the defenders, despite being aware of Mr Clarke’s previous fainting episode in April 2010, did not disclose that to the pursuers when they provided a written job reference to the council.

Although the reference document had been lost, it would have sought information to the effect that the employee was reliable, and in particular that there were no health issues which may affect his ability or suitability to be engaged in a driving job.

It was submitted that had the defenders provided accurate references then no offer of employment would have been made and the accident in December 2014 “would not have occurred”.

The two main issues for the court were whether it was 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, and if so, whether the defenders owed a duty of care to the injured party.

The pursuers submitted that for the council to obtain a relief under section 3 they 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 pursuers.

It was argued that subsection (2) should be read as a “standalone provision” which entitled the pursuers to make a direct case against the defenders.

But the defenders submitted that the claim under the 1940 Act was “irrelevant”, as both parties required to be under a relevant duty to the injured person. 

It was argued that 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 to the entire population of and any visitors to Glasgow at any point during the working life of Mr Clarke”.

‘No duty of care’

Dismissing the action, the judge ruled that it would not be “just, fair and reasonable” to impose a duty of care on the defenders in the circumstances of the case.

In a written opinion, Lord Ericht said: “In my opinion for the 1940 Act to apply both parties must be liable to the injured person. 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’. 

“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.”

The judge observed that the duty of care for which the pursuer contended for in this case was 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 to warn the new employer of a risk of physical injury to the third party, which as a matter of law had not been previously decided.

He added: “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…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. 

“Further, in my opinion it would not be just, fair and reasonable to impose the duty of care contended for.”

Finally, the judge held that there had not been an “assumption of responsibility” by the defenders.

Lord Ericht concluded: “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. 

“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.”