List: Labour Law Section: Duty of care Next: "In my judgment, it was motivated by aleaping to a conclusion - of dishonesty and lack of integrity - careless of thetrue facts of the case.". Spring v Guardian Assurance plc (1994) Facts: Written reference given by defendant to Mr Spring’s prospective employer. Tudor Evans J.held that the defendants owed the plaintiff a duty of care in respect of thereference, but that it was honest, accurate and not negligently written, so that. The judge accepted that the plaintiff had a contractwith Corinium initially from 1987 as a self-employed salesman. The defendants' second argument (which in order that it may prevail,must be made to stand independently on its own feet) is that, even if oneconcedes foreseeability and proximity and even if it would otherwise be justand reasonable for the plaintiff to recover under the head of negligence, publicpolicy dictates that the person who has been the subject of a negligentmisstatement shall not recover. Under the rules of the relevant regulatory body the prospective employer was under a duty to obtain a reference, and the Ds were under a duty to supply a reference. If thereexists some suspicion that a person in respect of whom a reference has beenasked for has not acted with complete integrity, the public interest requiresthat such suspicion should be communicated. There is no provision in that rulethat reasonable care shall be taken in the making of such disclosure and it isnot necessary to decide whether such a duty of reasonable care is to beimplied as between the members of Lautro. Furthermore, in a contemporary employment contextit is appropriate to regard the employer as obtaining an indirect benefit fromgiving a reference. There was undoubtedly a contract with Corinium as the judge found.Whether that was a contract of service or for services for present purposes inmy view does not matter, though the title of the posts after the firstappointment suggests that it was a contract of service. I therefore do not give the same weightto the President's comments as I would if they had been made in a contextwhich was the same as or more analogous to the context which is beingconsidered here. Upon Report from the Appellate Committee to whom wasreferred the Cause Spring against Guardian Assurance plc andothers, That the Committee had heard Counsel as well on Mondaythe 29th and Tuesday the 30th days of November last as onWednesday the 1st day of December last upon the Petition andAppeal of Graham Spring of 9 Farriers Croft, Bussage, Stroud,Gloucestershire, praying that the … I can see no justification for erecting a fence around the wholeof the field to which defamation can apply and treating any other tort, whichcan beneficially from the point of view of justice enter into part of that field,as a trespasser if it does so. That actiontailed, however, because the reference was honest, accurate and notnegligently written. Scottish Amicable, likeGuardian Assurance, was a member of Lautro, the rules of which at the timeincluded the following: "3.5(1) A person shall not be appointed as a companyrepresentative of a member unless the member has first takenreasonable steps to satisfy itself that he is of good character and of therequisite aptitude and competence, and those steps shall ... include ...the taking up of references relating to character and experience. The claim was based primarily on an alleged defamation.The claim failed when the judge found that the statements were justified.There was. The entire future prosperity and happiness of someonewho is the subject of a damaging reference which is given carelessly but inperfectly good faith may be irretrievably blighted. P was made redundant by D, who, through regulatory bodies, made false accusations that P was dishonest, which prevented P from obtaining employment. 519. Shareable Link. Similarcomments could be made in cases of justification or fair comment. It is a controversial area.The important point for present purposes is that the law as to injury toreputation and freedom of speech is a field of its own.". Beard (a member of a G.R.E.Assurance compliance team) and a Mr. Dixon (a senior sales consultant forG.R.E. Whatconcerns Mr. Spring is his loss of an opportunity to obtain employment dueto the negligence, as the judge found, in the preparation of the reference. In the former case. All the arguments for the appellant,though put skilfully in various ways by counsel, reduce to thatproposition. that there was here a sufficiently approximate relationshipbetween the companies on whose behalf the reference was given; the damagewas clearly foreseeable: and it is fair, just and reasonable in such anemployment situation for the law to recognise a duty on the part of the giverof the reference, and the person who within the employer's organisationcollates or provides information for the purpose of preparing the reference,to take reasonable care that the information was obtained and passed on withreasonable care. Mr. Siderfin did not get on with Mr. Spring, and on 26 July 1989. he dismissed him without explanation. In the present case there is noquestion of reliance by the plaintiff on the carelessly prepared reference. First. Case: Spring v Guardian Assurance [1994] UKHL 7. subject to the point on defamation, which I will haveto consider later), it is my opinion that an employer who provides a referencein respect of one of his employees to a prospective future employer willordinarily owe a duty of care to his employee in respect of the preparation ofthe reference. It would also directly affect anemployer's ability to recruit staff if it became known that he was not prepared. Type Legal Case Document Is part of Journal Title Industrial Relations Law Reports. what is its scope... What emerges is that, in addition to theforeseeability of damage, necessary ingredients in any situation givingrise to a duty of care are that there should exist between the partyowing the duty and the party to whom it is owed a relationshipcharacterised by the law as one of 'proximity' or 'neighbourhood' andthat the situation should be one in which the court considers it fair,just and reasonable that the law should impose a duty of a given scopeupon the one party for the benefit of the other. As to the subject of the reference, I cannot seewhy an employer cannot effectively protect himself, either in thereference itself or by writing separately to the subject indicating awillingness to give a reference but stating that it will be given withoutresponsibility.". 392, 418, 143 E.R. The employer is possessed of special knowledge, derived fromhis experience of the employee's character, skill and diligence in theperformance of his duties while working for the employer. As regard the claim for breach of contract. It must not however be thought that, in so holding, I am expressingany opinion upon the ordinary position where a person providing the referencesimply seeks information from an outsider, and the outsider is negligent inrelation to the supply to the referee of the information so requested. If Guardian had performed its duty properly, it would have discovered that Spring was not dishonest. If the case is remitted to the trial judge and if, as appears likely, heawards damages (assuming of course that the plaintiff can prove loss), thenhis judgment can be appealed and the issue of causation, as well as that ofamount, will remain open in the Court of Appeal. argues that, even if negligence were established, it didnot cause the damage alleged to the plaintiff. In these circumstances, I cannot see thatprinciples of the law of defamation are of any relevance. Inthese circumstances I am prepared to hold prima facie that Corinium (as theemployer of Mr. Siderfin) was under a duty of care to the appellant togetherwith Guardian Assurance. Spring v Guardian Assurance [1995] 2 AC 296 Case summary last updated at 19/01/2020 12:32 by the Oxbridge Notes in-house law team. In the later cases of South Pacific Manufacturing Co. Ltd. v. NewZealand Security Consultants & Investigations Ltd. and Mortensen v. Laing[1992] 2 N.Z.L.R. I cannot howeversee any basis upon which G.R.E. The facts of this case are quite complex. They remain distinct torts. 64, cited a sentence from the speech of Lord Edmund-Davies inLiverpool City Council v. Irwin [1976] 2 All E.R. To impose thelaw of negligence upon it by accepting that there may be common lawduties of care not to publish the truth would be to introduce adistorting element. Once you create your profile, you will be able to: Claim the judgments where you have appeared by linking them directly to your profile and maintain a record of your body of work. Isuspect that such an inhibition exists in any event. Since, for the reasons I have given, it is myopinion that in cases such as the present the duty of care arises by reason ofan assumption of responsibility by the employer to the employee in respect ofthe relevant reference, I can see no good reason why the duty to exercise dueskill and care which rests upon the employer should be negatived because, ifthe plaintiff were instead to bring an action for damage to his reputation, hewould be met by the defence of qualified privilege which could only bedefeated by proof of malice. It is lost if the occasion which gives rise to it is misused.For in all cases of qualified privilege there is some special reason ofpublic policy why the law accords immunity from suit - the existenceof some public or private duty, whether legal or moral, on the part ofthe maker of the defamatory statement which justifies hiscommunicating it or of some interest of his own which he is entitledto protect by doing so. There may be difficult situations inbetween but these will, as is the common practice, have to be worked out in. First, Thurston v. Charles (1905) 21T.L.R. This item appears on. It appears from the reportof that decision that there was no discussion during the hearing of therelationship between the torts of negligence and defamation.". 895, pp. Spring v Guardian Assurance plc [1994] UKHL 7, [1995] 2 AC 296 is a UK labour law and English tort law case, concerning the duty to provide accurate information when writing an employee reference. "In the result the present rules are in broad terms well-knownand reasonably clear. The duty in defamation may be described as a duty not to defamewithout justification or privilege or otherwise than by way of faircomment. There are also the restrictions on unfair dismissalwhich mean that an employee is ordinarily not capable of being dismissedexcept after being told of what is alleged against him and after he has beengiven an opportunity of giving an explanation. Nonetheless, in the circumstances of this case, it is moreconvenient to consider the position in negligence first, which is the order. ), "More recently Lord Bridge in Scally v. Southern Health andSocial Services Board (British Medical Association, third party) [1992]1 A.C. 294 at 307 drew a clear distinction between what he describedas -, 'the search for an implied term necessary to givebusiness efficacy to a particular contract and the search, basedon wider considerations, for a term which the law will implyas a necessary incident of a definable category of contractualrelationship. I prefer this course to the alternative of sending the case back to theCourt of Appeal, where Glidewell, L.J., delivering the judgment of the courtsaid: "Mr Eady Q.C. (2) If so. In my opinion the learned judge was entitledto find, as he did. 1 would allow this appeal and remit the case to the Court of Appeal sothat that court can deal with the question of causation. Those giving such references can make it clear what are the parameterswithin which the reference is given such as staling their limited acquaintancewith the individual either as to time or as to situation. I do notthink so, I can see no material distinction from the position which would havearisen if they had been the appellant's employers. Mr. Spring applied to two other companies forsuch an appointment, but each of them received from Guardian Assurance areference in the same terms, which led to their refusing his application. Before confirming, please ensure that you have thoroughly read and verified the judgment. This is set out in para8 of the pleading as: "... that, the Defendants and/or any of them wouldprovide a reference which was full, frank and truthful andwhich was in any event prepared using reasonable care. Thus in Lawton v. B.O.C. Spring v Guardian Assurance [1994] IRLR 460. (1981), para. Existing subscriber? Reference alleged plaintiff had no integrity, had abused his position etc. In effect, asubstantial section of the law regarding these two associated tortswould be emasculated. It is equallyapplicable to duties owed in respect of a servant's welfare, which is what thisappeal concerns. (Recent Cases) 108and Mr. Andrew Demopoulos in (1988) 104 L.Q.R. Reference for a preliminary ruling: Court of appeal (England) - United Kingdom. If the ambitof negligence were extended to cover the son of circumstances that exist inthe present case, the consequences would be no less deleterious. My Lords, for these reasons I would affirm the decision of the Courtof Appeal on the issue of negligence. 148 the Ministry ofAgriculture and Fisheries took part in a television broadcast the thrust ofwhich was that a product of the plaintiffs called Maxicrop was ineffective forits claimed purpose of stimulating plant growth in agriculture and horticulture.The plaintiffs sued the Ministry and the Broadcasting Corporation of NewZealand in defamation and in negligence. Lord Bridge of Harwich said, at pp. In these circumstances, it is probably academic whether a similar dutywas owed to the appellant by G.R.E. 608. 273). He went on to find thatneither Mr. Siderfin or Mr. Dixon had acted out of malice, in respect thateach of them genuinely believed in the truth of the allegations he was making,hut that each of them had failed to exercise reasonable care in respect of theallegations through making them without carrying out a thorough investigationinto their truth. The first is that to conferon the plaintiff a cause of action in negligence would distort and subvert thelaw of defamation in cases where the defence relied on is one of qualifiedprivilege, that is, where, on an occasion when he has either a duty tocommunicate information or a legitimate interest of his own to protect, thedefendant in good faith and without malice defames the plaintiff. unless he is given a reference. 282. However, notwithstanding the truth of the alleged libel theplaintiff succeeded in its action against the Ministry of Agriculture andFisheries on an alternative claim for negligence because of the Ministry'sfailure to disclose all the results of trials which it had conducted and becausethe Ministry had published its findings in an unreasonable and unfair manner.The Court of Appeal allowed the appeal and decided that the Ministry was notliable. There may be otherpolicy reasons in particular situations which should prevail. The position in English law being that there isno authority of your Lordships' House directly in point, it is open to yourLordships to decide the question as one of principle on an analysis of the tortof defamation and of the proper approach to considering whether a duty ofcare may exist when it has not been recognised before. Ican see nothing in the circumstances to differentiate the situation from thatwhere he was still a company representative at the relevant time. Reference alleged plaintiff had no integrity, had abused his position etc. The secondquestion is whether, independently of the existence of the other two torts, andtaking the tests adopted by Lord Bridge of Harwich in Caparo, a duty of carecan in any event arise in relation to the giving of a reference. For the former Nocton v. Lord Ashburton has longstood as the authority and for the latter there is the decision of SalmonJ. GUARDIAN ASSURANCE By CHRIS HILSON I. It is not actionable even though it be defamatoryand turns out to be untrue.". By rule 3.5(2) "A member whoreceives an enquiry for a reference in respect of a person whom anothermember is proposing to appoint shall make full and frank disclosure of allrelevant matters which are believed to be true to the other member." and thus thathe would not imply such a term. One need only mention Hedley Byrne. 529-530). D. 56 at p.71. That is confirmed by the LautroRules. Want to read more? . The duty in defamation maybe described as a duty not to defame without justification or privilegeor otherwise than by way of fair comment. The company was established through the merger of the Guardian Assurance Company and Royal Exchange Assurance in 1968.. "It was argued for the appellant, inter alia, that neitherdefamation nor slander of goods requires a background duty or breach;and if injury does or may involve those separate elements, there is noground for depriving the plaintiff of a separate cause of action. Click here to remove this judgment from your profile. Privilege, where applicable, is in a few areas an absolute butin most a qualified defence. Held: Duty of care owed to Spring. To make an employerliable for an inaccurate reference, but only if he is careless, is, I wouldsuggest, wholly fair. "(2) A member which receives an inquiry for a reference in respectof a person whom another member or appointed representativeis proposing to appoint shall make full and frank disclosure ofall relevant matters which are believed to be true to the othermember or the representative. ," which the President cited. Spring v Guardian Assurance [1995] 2 AC 296. Breach ofconfidence is actionable, subject to special defences, however the dutyof confidence arises (Attorney-General v. Wellington Newspapers Ltd.[1988] 1 N.Z.L.R. I do not see how there can be a liability upon the respondents innegligence consistently with the policy of the law established in the law ofdefamation in relation to the principle of qualified privilege which, in theabsence of malice, protects from liability the maker of a statement made onthe privileged occasion. The provision of such references is a serviceregularly provided by employers to their employees; indeed, references are. The trial judge had also ruled that the claim for malicious falsehood had not been made out, and that was not subsequently appealed. exercise could no doubt produce different answers but, for my own part, Icome down decisively on the side of the plaintiff. In Balfour (supra) the Inspector who wrote the comment on the teacher'entirely unsuitable," giving detailed reasons, concluded "check file to makeabsolutely sure I have the right person then ring Mrs. Brocklesby and informher." Finally, there is the point that, at the time when the reference wasgiven, the appellant had ceased to be a company representative of GuardianAssurance. Such a term was not necessary for the businessefficacy of the contract (The Moorcock (1889) 14 .P.D 64 and Liverpool CityCouncil v. Irwin [1977] AC 239, 266). Faced with the possibility of an action of damages for negligenceat the instance of the subject of the reference there are grounds for expectingthat the employer would be inhibited from expressing frankly any reservationswhich he might have about the honesty of the employee. A statement carelessly mademay not be defamatory - a statement that a labourer is "lame," a secretary"very arthritic," when neither statement is true, though they were true of someother employee mistakenly confused with the person named. Mr. Spring then ceased to be aGuardian Assurance company representative. The availability of a remedy without having to prove malice will notopen the floodgates. The principal point which the appellant has to overcome in respect ofthe reasoning of the President is the fact that to allow an action for negligencewould be to introduce a "distorting element" into the law of defamation, thatis, into the area of law which deals with unjustified injury to reputation, whichis an area of the law which up to now defamation has had to itself. Again, I cannot see that this makes any difference. As a matter of convenience, I will treat him as anemployee, but it should be appreciated that my views would be the same if hewas acting under a contract for services. Case C-262/88. On 7 July 1989 the major shareholder in Corinium sold the companyto Guardian Assurance, which appointed a Mr. Siderfin to be its chiefexecutive. First of all, althoughthe rule is, understandably, concerned with the interests of the member whoreceives it. That the Respondentsdo pay or cause to be paid to the said Appellant the Costsincurred by him in the Court of Appeal and in respect of the saidAppeal to this House, the amount of such last-mentioned costs tobe certified by the Clerk of the Parliaments if not agreedbetween the parties: And it is also further Ordered. That case didnot involve the giving of a reference. Theremay well be others yet to be established. This statement is appropriately limited to the "class of case" withwhich the Court of Appeal in New Zealand was then concerned. Shareable Link. They might well prefer,if under no legal duty to give a reference, to refrain from doing so at all.Any reference given might be bland and unhelpful and information which itwould be in the interest of those seeking the reference to receive might bewithheld. The public interest that the law shouldprovide an effective means whereby a man can vindicate his reputationagainst calumny has nevertheless to be accommodated to the competingpublic interest in permitting men to communicate frankly and freelywith one another about matters in respect of which the law recognisesthat they have a duty to perform or an interest to protect in doing so.What is published in good faith on matters of these kinds is publishedon a privileged occasion. Gre personnel have had to visit the investor torectify the situation. Theplaintiff, he points out, must prove that had Scottish Amicable receiveda reference which was not a negligent misstatement but one preparedwith all reasonable care, then, on the facts of the case, they wouldhave employed him. 399,"a claim for mere loss of reputation is the proper subject of an action fordefamation, and cannot ordinarily be sustained by means of any other form ofaction." . Spring v Guardian Assurance plc (1994) Facts: Written reference given by defendant to Mr Spring’s prospective employer. Extension of Hedley Byrne However, in this case, it is not the recipient of reference but subject of reference who had sued for damages. [11], The Court of Appeal has further held that, if an employee leaves when an investigation is ongoing but has not been concluded, or where issues arise after an employee leaves that have not been investigated, employers can disclose this information but should do so in a measured and fair way, which will be particularly important if to omit this information would mean providing a misleading reference. The Court of Appeal in the present case concluded that: "In our view the decision in Bell-Booth Group Ltd v. Attorney -General represents the law of England. I can see noreason why a disclaimer cannot be so framed as to exclude a liabilitynot only to the recipient but also to the subject of the reference andalso to protect the actual servant who writes the reference, Mr.Uffendale in this case. Introduction After the House of Lords' decision in Spring v. Guardian Assurance plc,) employers may now be liable in the tort of negligence and in contract to their employees or ex-employees2 for economic loss suffered by them as a result of inaccurate' and negligently prepared employment references. Instead, in a case where an action in negligence would. Employers in industry, commerce and the professions areall dependent on the reciprocity which exists among employers as to thegiving of references on prospective recruits. 392-393.) [10] The Employment Appeal Tribunal, in an unfair dismissal case, ruled that, in preparing a reference, it was not reasonable to provide details of complaints against an employee of which the employee was not aware. An employee cannottherefore rely on the rules directly. However, as his relationship with all therespondents arose out of his previous engagement with Corinium, the primarysource of any liability is contractual rather than tortuous. Negligence has always been an irrelevant consideration (I am notreferring to quantum of damages) and it will remain irrelevant in an action fordefamation. However, on the facts of the case he held that there wasno breach of duty; and in any event he gave no consideration to the impact of. 'Proximity' is. If he uses the occasion for some other reasonhe loses the protection of the privilege.". This argument falls to be considered on the assumption that, but for theoverriding effect of public policy, a plaintiff who is in the necessary proximaterelation to a defendant will be entitled to succeed in negligence if he proveshis case. He does not haveto prove that, but for the negligent reference, Scottish Amicable would haveemployed him. it is plain that such a duty of care, if it exists, was broken by both of thesedefendants. While there is a duty of care in the preparation of a reference, the employer does not have a general duty to provide one[4] in cases other than where a subsequent employer is required to receive it, and it does not matter what form the reference might take. Call an Expert: 0800 231 5199. It is equally foreseeable that if it isinaccurate in a material particular the recipient who acts upon it maysuffer a detriment which, if the statement had been accurate, he wouldnot have undergone. The facts of the present case can be distinguished from those in theBell-Booth case and I accept that the outcome of that case was correct. As 1 understand the Scally case, it recognises that, just as in theearlier authorities the courts were prepared to imply by necessary implication.1 term imposing a duty on an employer to exercise due care for the physicalwell being of his employees, so in the appropriate circumstances would thecourt imply a like duty as to his economic well being, the duty as to hiseconomic well being giving rise to an action for damages if it is breached. It is, however, necessary for an understanding of the manner in whichthe issue arises to give a brief outline of the salient facts. 660 (E.C.J. Spring v Guardian Assurance Plc and Others: HL 7 Jul 1994 The plaintiff, who worked in financial services, complained of the terms of the reference given by his former employer. That case deals with the scope of damagesfor a tort that has undoubtedly been committed and does not touch theissue of judicial creation of a duty of care. It would also recognise that while both innegligence and defamation it is the untrue statement which causes the damage,there is a fundamental difference between the torts. The point has arisen more than once in New Zealand. GUARDIAN ASSURANCE PLC AND OTHERS(RESPONDENTS), Lord Keith of KinkelLord Goff of ChieveleyLord LowryLord Slynn of HadleyLord Woolf. At this point I must face the possibility that the conclusion which Ihave expressed may be thought to be inconsistent with the decision of thePrivy Council in Mutual Life and Citizens' Assurance Co. Ltd. v. Evatt [1971]A.C. 793. The public interest demands that the existence of such suspicionshould not be suppressed. In the case of references for positions ofresponsibility this is particularly important. In injurious falsehood, on the otherhand, the plaintiff has the burden of proving both falsity and malice. Atfirst instance the claim in defamation failed because a plea of justificationsucceeded. (a) that it was an implied term of the contract of employment between theappellant and Corinium that Corinium would ensure that reasonable care wastaken in the group of associated companies in the compiling and giving of thereference if it was asked for by a potential employer and (b) that Coriniumwas in breach of that implied term. I havealready indicated that an action for negligence is concerned with the careexercised in ascertaining the facts and defamation with the truth of thecontents of what is published. It must be shown that hedid not have a positive or honest belief in the truth of what he published, or,if he did believe it when uttered on a privileged occasion, that he "misused theoccasion for some purpose other than that for which the privilege is accordedby the law" or was guilty of personal spite. However, it has been suggested that Lawton v BOC Transhield was wrongly decided because it extends negligent is found to be a contract with Guardian Assurance a term is to be implied intoit that reasonable care would be taken in the giving of the reference. It is a controversial area.The important point for present purposes is that the law as to injury toreputation and freedom of speech is a field of its own. Thesedecisions do not directly cover the present case but they are a pointer as towhat the principle should be. If there were to be such a principle itwould be an unusual one since, unless Hedley Byrne was wrongly decided, itwould apparently apply to the negligent provider of a bad but not a goodreference. (2) If so, whether the existence of such a duty of care will nevertheless benegatived because it would, if recognised, pro tanto undermine the policyunderlying the defence of qualified privilege in the law of defamation. 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