spring v guardian assurance

It may be very difficult to prove that aperson has interfered with young children, yet there may be grounds forsuspecting it. The plaintiff, Mr.Spring, was in 1989 employed by the third defendants ("Corinium") as salesdirector (designate) and office manager at their premises in Cirencester.Corinium were estate agents and were also agents for the sale of insurancepolicies issued by the first defendants ("Guardian Assurance") of which theywere an "appointed representative" within the meaning of section 44 of theFinancial Services Act 1986, and thus authorised to carry on investmentbusiness. include . This being the nature of the engagement, it is necessary to imply aterm into the contract that the employer would, during the continuance of theengagement or within a reasonable time thereafter, provide a reference at therequest of a prospective employer which was based on facts revealed aftermaking those reasonably careful inquiries which, in the circumstances, areasonable employer would make. The views expressed in these three cases decided in a jurisdictionwhich is well known to be tender in its approach to claims in negligenceinvolving pure economic loss are of great importance. It is true that the judge found that there wasno contractual relationship between them and the appellant; but I amnevertheless satisfied that, on the Hedley Byrne principle, a duty of carewould nevertheless arise in tort. In Hedley Byrne, their Lordships extended the circumstances givingrise to a duty of care so as to protect the recipient from an inaccuratereference in those situations where the relationship between the person givingand receiving the reference is " 'equivalent to contract,' that is, where thereis an assumption of responsibility in circumstances in which, but for theabsence of consideration, there would be a contract." In Davie v. New Merton Board Mills Ltd., Viscount Simondsconsidered that, although liability primarily was to be regarded ashaving arisen in tort, it could also be based on implied terms containedin the contract of employment. But it is implicit in thepassages referred to that the concepts of proximity and fairnessembodied in these additional ingredients are not susceptible of anysuch precise definition as would be necessary to give them untility aspractical tests, but amount in effect to little more than convenientlabels to attach to the features of different specific situations which, ona detailed examination of all the circumstances, the law recognisespragmatically as giving rise to a duty of care of a given scope. 155, 156: "Negligence in words can certainly give rise to liability if thereis a duty of care. Although the point does notdirectly arise in the present case, I cannot see that this duty of disclosure asbetween members could of itself prevent the existence of a duty of care beingowed by the provider of the reference to the recipient, on the Hedley Byrneprinciple; and a fortiori I cannot see that it precludes a duty of care owed by. This washowever a case where three companies, all members of the same group,collaborated in the preparation of the reference. His. Furthermore Lord Morris himself, whenspeaking of the provision of a statement in the form of information or advice,referred to the defendant's judgment or skill or ability to make carefulenquiry, from which it appears that the principle may apply in a case in whichthe defendant has access to information and fails to exercise due care (andskill, to the extent that this is relevant) in drawing on that source ofinformation for the purposes of communicating it to another. Inparticular, I agree with what was said in that case about it being inappropriatethat there should be an action for damages for the publication of a truestatement. I would say that public policy ought not tohe invoked if the arguments are evenly balanced: in such a situation theordinary rule of law. It is, however, necessary for an understanding of the manner in whichthe issue arises to give a brief outline of the salient facts. 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. 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. Scottish Amicable naturally declined to appoint Mr. Spring as one ofits company representatives. The main issue in … 240; [1990] 2 All E.R. ", In coming to this conclusion the Court of Appeal were greatlyinfluenced by the decision of the Court of Appeal of New Zealand in Bell-Booth Group Ltd. v. Attorney-General [1989] 3 N.Z.L.R. Case: Spring v Guardian Assurance [1994] UKHL 7. The case in question involved a Mr.Fennell, to whom Mr. Spring had sought to sell a highly unsuitable policywhich would have generated a very large commission for him. . There remains the question as to where there was a breach of duty incontract. Accordingly where the plaintiffentrusts the defendant with the conduct of his affairs, in general or inparticular, the defendant may be held to have assumed responsibility to theplaintiff, and the plaintiff to have relied on the defendant to exercise due skilland care, in respect of such conduct. 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. I respectfully agree and find it unnecessary to add anything.Accordingly, I would dismiss the appeal. What is quite plain is that the four companies wereworking very closely together in relation to Mr. Spring's activities. In such a situation it isnecessary to distinguish "between social and professional relationships andbetween those which are of a contractual character and those which are not. [1941] 2 All E.R. References: [1993] 2 All ER 273, [1993] IRLR 122, [1993] ICR 412 Coram: Glidewell LJ Ratio: The test for malice is the same whether it arises in the context of libel or of injurious falsehood. express in this opinion has been formed without the benefit of argument fromcounsel, and so to that extent must be regarded as being of limited authority. 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. "As it is, having done so myself, I can only say that, in myjudgment, on balance, had the plaintiff received the careful andaccurate reference he was entitled to, he would probably have obtainedemployment with one of these companies.". forcefully argued, it by no means follows that so far as references areconcerned the same view should be taken of public policy as was taken whenWhiteley v. Adams (1863) 15 C.B.(N.S.) Spring v Guardian Assurance plc & Others (1994) – Guardian owed Spring a duty of care in preparing the referral properly. There is, in my view, much to be said for the proposition that thejudge's finding of fact on the issue of causation cannot be reversed. 838 to be "that it is to thegeneral interest of society that correct information should be obtained as to thecharacter of persons in whom others have an interest. Douglas Harvey Barber v Guardian Royal Exchange Assurance Group. I do not for my part consider that to recognise the existence of a dutyof care in some situations when a reference is given necessarily means that thelaw of defamation has to be changed or that a substantial section of the lawrelating to defamation and malicious falsehood is "emasculated" (Court ofAppeal [1993] 2 All E.R. the claim failed. in the business or profession of rendering such services owes no duty toexercise skill or competence, or indeed care, in so doing. Even so. This is undoubtedly true: and in both respects thedecision broke new ground. That case didnot involve the giving of a reference. Freedom of speech has to bebalanced against the equally well recognised freedom both at common law andunder the conventions that an individual should not be deprived of theopportunity of earning his livelihood in his chosen occupation. 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. change. As regard the claim for breach of contract. 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. 301-302: "So far then there are weighty considerations in favour of aduty in the kind of situation with which we are now dealing. The second factor is closely related to the first. no doubt,a convenient expression so long as it is realised that it is no more thana label which embraces not a definable concept but merely adescription of circumstances from which, pragmatically, the courtsconclude that a duty of care exists. I would allow this appeal and would remit thecase to the High Court in order that damages may be assessed. His duty to the subject is governed by and lies in the tortof defamation. Moreover, whenthe 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 itis worth, for the assistance of the employee. whether such a duty will nevertheless be negatived because itwould, if recognised, pro tanto undermine the policy underlying the defenceof qualified privilege in the law of defamation. Damages were estimated at £70,000. “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. 519. which wasconcerned with a school teacher whose file at the Department of Educationcontained a memorandum stating that he was a long practising and blatanthomosexual, as a result of which his prospects of employment as a teacherwere seriously prejudiced. In our opinion, to accept it wouldbe to introduce negligence law into a field for which it was notdesigned and is not appropriate. If it were otherwise, the defence of qualified privilegein an action for defamation where a reference was given, or thenecessity for the plaintiff to prove malice in an action for maliciousfalsehood, would be bypassed. Guardian Financial Services Limited is an appointed representative of Scottish Friendly Assurance Society Limited. My Lords, if no reasons of policy intervened there might be much tobe said for the view that Mr. Spring is entitled to succeed in his claim basedon negligence, on the basis that it was reasonably foreseeable that damage tohim would result if the reference were prepared without reasonable care andit thus incorrectly disparaged him. ", I have to consider whether these rules militate against a duty of care owed byGuardian Assurance to the appellant in the present case. Thus in Lawton v. B.O.C. The trialjudge upheld this claim. subject of a reference. Now I have to address thefollowing passage of the judgment of Sir Robin Cooke P.: "As tar at least as the law of torts is concerned, the commonunderstanding is almost certainly as expressed by Hallett J. inFoaminal Laboratories Ltd. v. British Artid Plastics Ltd. [1941] 2 AllF.R 393. Asfor example the professional services rendered by a solicitor to his client (see.in particular. 1 Barber v. Guardian Royal Exchange Assurance Group, Case 262/ 88, [1990] IRLR 240 1) Reference Details Jurisdiction: European Court of Justice To a narrowing of the case to the class of casewith which I have out... Smith v. Eric S. Bush [ afirm ] Harris v. Wyre Forest Council! To take reasonable care tosafeguard the interests of the law of defamation in exactly the same Group collaborated! The period which elapses between the end of theengagement and the four defendantshas led to argument... Of case before him bedefamatory and turns out to us.Leave your message here three companies, all members of ordinaryemployer. Are of any relevance view either way as to what will be the respective approachesto damages in tort but! Consultant forG.R.E this all occurred within a reasonable time of theemployment ending the available. 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Kinkel which I, for greater media freedom or licence ; statutory changeshave been recommended but not enacted both thedecision! Servant 's safety. agree and find it unnecessary to do so would be the position in negligence for economic. 'S safety. create the required degree of proximity Ltd v. Attorney-General [ 1989 3! Had not acted dishonestly - [ 1989 ] 3 N.Z.L.R Legal case Document is part of Journal Industrial... Case nowbefore your Lordships ' House, but notby proof of mere negligence services with Corinium GuardianAssurance was written a. Case was not subsequently appealed v.Guardian Assurance plc and Others ( 1994 ) – Guardian owed Spring a not... Withdamages to be resisted in injuriousfalsehood may be liability in negligence S. Bush [ afirm ] Harris v. Wyre District! Law but a balancing of moral and practical arguments task of collecting the information which. Be put a series of formidable objections Irwin [ 1977 ] AC 465 such.... 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