Duty to Warn describes the obligation of an experienced construction professional to warn others of defects in works – even if the professional isn’t directly responsible for that aspect of the works.
There are a number of well known cases demonstrating the courts attitude to Duty to Warn and demonstrating the cost to construction professionals who either ignored, or were oblivious to the risk.
How can a Duty to Warn be created?
There is no general duty to warn in English and Scottish law however, there are circumstances in which a duty can exist.
In it’s judgement on the case of Plant Construction Plc vs Clive Adams Assoc., the Appeal Court offered the following conclusions:
- There will usually be an implied (sometimes explicit) contractual term that a contractor shall perform a contract using the skill and care of a reasonably competent contractor
- The circumstances of a particular contract will establish the scope of that obligation
- Where an experienced contractor is involved and the design of the works is not only defective, but obviously dangerous there is an “overwhelming case” that the contractor is bound, as part of its obligation, to use appropriate skill and care to warn a client of dangers it perceives
The court left open the question of circumstances where the defective was not obviously dangerous.
Other considerations could include:
- Contracts will often place a higher obligation on the contractor than reasonable skill and care, even so, there is an exposure through both the Tort of Negligence and the implied term in the Supply of Goods and Services Act 1982.
- The more experienced, skilled or specialist the contractor/construction professional is, the higher the obligation may be considered to be.
- Contractual requirements to inspect, monitor, supervise, etc. create a contractual requirement of, not only a Duty to Warn, but to oversee the rectification/remedy of the defect.
- New Engineering Contracts (NEC) require both parties to give early warning of anything which may delay the works or increase costs. If the contractor fails to comply with this obligation they will be unable to claim for additional costs/delays following any subsequent compensation event.
- The Construction (Design and Management) Regulations 2015 require that the principal designer ensures the works are carried out in a way that minimises Health & Safety risks.
- The Health & Safety at Work Act 1974 creates obligations to warn both employees and third parties about the dangers present in a place of work.
What should you do?
- Understand your exposure to Duty to Warn, through the mechanisms listed.
- Educate your staff to reinforce their understanding of their responsibilities, and create a simple process for them to raise concerns promptly with senior management and in turn other contractors and employers.
- As a minimum, warn of all dangerous or potentially dangerous defects.
- Make sure that your company’s warnings to clients or other contractors are clear, unambiguous and in writing. If your warning isn’t strong enough the courts may still consider you failed in your duty!
- Check that your insurance broker understands Duty to Warn and your potential exposure to it.
- Always seek to buy Professional Indemnity Insurance with a specific Duty to Warn extension.
For further details and advice please contact our construction specialist, Mike Mitchell – firstname.lastname@example.org or call 07496 888411.
Alistair Dean, Partner, Anderson Strathern, comments,
‘The concept of a duty to warn is an important one, but in some respects an undeveloped area of the law. The cases, which mainly come from the English courts, demonstrate that it is not easy to succeed in actions which allege that construction professionals breached their duty to warn. There are two legal consequences of failing to discharge a duty to warn. One is in the possibility of a professional indemnity claim. The other is the possibility of a health and safety prosecution under the Health and Safety at Work Act 1974. The ‘rules of the game’ are the same in either case, and I would suggest that the underlying rationale is the application of common sense, and an abundance of caution. If a construction professional, during the course of an inspection/site-visit, is concerned that the works are being carried out in such a way that there is a health and safety risk, that should be immediately flagged up to all of the relevant parties. However, as is demonstrated by the case of Goldswain -v- Beltec Ltd in 2015, a structural engineer (and by extension any designer) is entitled to assume that their drawings will be followed by the appointed contractor, and there is no obligation to supervise the works to ensure such compliance.’