Glasgow City Council Against First Glasgow (no.1) Ltd
| Jurisdiction | Scotland |
| Judge | Lord Ericht |
| Neutral Citation | [2022] CSOH 9 |
| Docket Number | CA64/19 |
| Date | 27 January 2022 |
| Court | Court of Session |
| Published date | 27 January 2022 |
OUTER HOUSE, COURT OF SESSION
[2022] CSOH 9
CA64/19
OPINION OF LORD ERICHT
In th e cause
GLASG OW CITY COUNCIL
Pursuer
against
FIRST GLASGOW (NO. 1) LTD
Defender
Pursuer: Smith QC, Gardiner; BLM
Defender: Dean of Faculty, Pugh; Clyde & Co (Scotland) LLP
27 January 2022
Introduction
[1] On 22 December 2014 a bin lorry owned and operated by the pursuer crashed in the
centre of Glasgow at George Square. It was driven by the pursuer’s employee Henry (also
known as Harry) Clarke. Mr Clarke suffered a vasovagal syncope immediately prior to the
incident. He maintained that he had suffered a faint, or blackout, causing him to lose
consciousness, the vehicle to lose control, and death and injury to pedestrians. A number of
claims were int imated to the pursuer by those injured and the families of those killed. The
pursuer reached settlements with the claimants but now seeks to recover the amount paid
under these settlements (including legal costs and expenses) from the defender, a previous
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employer of Mr Clarke, on the ground of the defender’s negligence in providing an
employment reference to the pursuer. The sum sued for in this action in respect of the
settled claims is £6,555,872.
[2] This case raises difficult legal questions such as whether the giver of a reference owes
a duty of care to th e recipient of the reference rather than just to the subject of the reference,
whether the giver of a reference who has received doctor’s advice that the subject of a
reference is fit to drive is nevertheless obliged to disclose unfitness to drive, and whether a
party who has a potential defence to a case but settles it anyway can recover from a third
party the amount paid in settlement.
[3] There is however a prior question which is one of fact. Was a reference given at all,
and if so what did it say? Th e problem for the pursuer is that it has not produced the
reference. It could not find the reference, or any copy of it, in either its paper file or
electron ic records. Nor does any copy of the reference exist in the defender’s files and
records. No witness remembers seeing the reference or what it said.
[4] Notwithst anding these difficulties the pursuer’s case is that a reference was given to
the pursuer by the defender in the form of a particular standard form (App7) issued by the
pursuer which contained pre-printed questions and that the defender answered these
questions and in doing so acted negligently and made negligent misstatements.
Fatal Accident Inquiry
[5] A Fatal Accident Inqu iry was held into the incident ([2015] FAI 31). It is however
important to note at the outset that my decision in this case is based on the evidence which
was led before me in this case, and not on the findings of the Fatal Accident Inquiry. The
determination in the Fatal Accident Inquiry is inadmissible and may not be founded upon in
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the current proceedings (Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland)
Act 2016 section 26(6)). In any event, the evidence available to me in relation to the reference
was fuller and more detailed th an was available at the time of the FAI. For example, some
evidence from th e pursu er’s electronic records was not available until shortly before the date
originally set down for proof in this case, thus necessitating the proof to be discharged to
allow further investigation, resulting in the lodging of a substantial number of further
productions and expert reports
The pursuer’s case
[6] The pursuer’s averments can be summarised as follows. It was the pursuer’s
invariable practice to send previous employers an App7. Question 4 on the form asked
“Please give details of any sickness absence that the applicant has had in his/her last two
years of employment with you.” Question 7 on the form stated: “Please give any other
relevant information about the applicant that you feel a prospective employer should be
aware of eg live disciplinary actions etc” Mr Clarke had been absent from work due to
illness after an incident on 7 April 2010 when he lost consciousness in his bus. The reference
was supplied by Fran k McCann, or Robert Donnelly, or a member of the defender’s human
resources staff or another employee. Mr McCann or another member of staff provided a
reference by completing the App7 but did not include the illness absence of state, nor that
the reason for absence had been a vasovagal attack, nor that Mr Clarke had suffered a
fainting fit and lost consciousness while in charge of a bus in April 2010. The defender
shou ld have stated in response to question 4 that he had a period of sickness for about three
weeks and the reason for absence was vasovagal attack, and in response to Question 7 that
he had suffered a fainting fit and lost consciousness when in charge of a bus . If these
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