Where does the duty to warn of potential dangers or design errors in other people’s work begin and end? Stacy Sinclair says we can learn from a chilling tale
A designer (or contractor) may have a ‘duty to warn’ of, for example, potential dangers on site or obvious errors in the design/specification of another consultant. This duty depends on the particular facts at hand so the designer must continuously assess each situation. This is particularly important in the collaborative BIM environment where information is, arguably, more accessible to all.
The recent case of Cleightonhills v Bembridge Marine Ltd & Others is a reminder of the legal principles of this ‘duty to warn’.
No warning
This case arose out of a serious accident at a boating yard. A young employee was helping to manhandle a boat from a recently constructed first floor external gantry platform into the adjacent workshop. As he pushed the boat on a trolley, the floor grating failed and he fell 11 to 12 feet to the floor below. The loose grating fell on him inflicting severe traumatic brain injuries. The boatyard owner agreed damages for personal injury in excess of £7m and then brought proceedings against those involved in the design, construction and/or supply of the building and first floor gantry platform.
Proceedings against the designer and structural engineer were settled by agreement. This left claims against the subcontractor for the supply and construction of the platform, the sub-subcontractor for the fabrication of certain platform elements and the self-employed draughtsman who prepared detailed fabrication and working drawings.
Here, the complaint was that they failed to appreciate the intended use of the platform. The judge held that all three exercised all the reasonable care and skill which might reasonably have been expected of them in doing what they were employed to do and in what they actually did. The real problem was the failure by the primary designers to understand and provide for the likely horizontal or lateral loads on the platform.
Third parties
With regard to the duty to warn, the judge said there could be no criticism of the third parties for not warning those further up the line that there was a potential problem with the design specification. Nothing in the documents would have alerted a reasonably competent and careful party to the fact that the platform was under-designed. Where a construction contract does not spell out all that is to be provided, the judge noted that: ‘That which is not expressly specified but which is necessary must be reasonably suitable for what can otherwise be gleaned as the purposes for which the building, or at least the unspecified element, is to be used. Where those purposes are expressly spelt out in the contract documentation or where there is reliable evidence that those purposes (if not so spelt out) were communicated to the contractor prior to the contract, those will be the purposes to which reasonable suitability relates.’
For example, a party might reasonably be expected to pick up an obvious design error (ie a missing beam or column), but not to cross check any unexpressed design assumptions.
The judge also noted that there can be little doubt that a failure to warn in the case of potential danger to people may give rise to a breach of any duty of care owed to a third party by a party who knows of the danger. Where the parties are in contract, the duty to warn may extend to dangers of which the party in question should have been aware. In purely tortious circumstances, any duty to warn may not in fact extend to warning persons who might be affected by the danger; it may be limited to warning either the party with whom the person required to warn is in contract, or the local authority.
Stacy Sinclair is with Fenwick Elliot LLP
Duty of care: You owe a duty of care to your client, but it does not apply to financial loss
A duty of care is owed by a construction professional to his client by virtue of the contract, or a duty arising in tort not to cause damage to others (independently of any contract).
It is settled law that a builder does not, due to his contract to construct the building, assume any liability in tort of negligence in relation to defects in the building giving rise to purely economic loss. Where there is a duty, liability can only arise if the defect remains hidden until the defective structure causes personal injury or damage to property other than the structure itself. If the defect is discovered before any damage is done, the loss sustained by the owner of the structure, who has to repair or demolish it to avoid a potential source of danger to third parties, would seem purely economic.
In the case of Cleightonhills (above), the judge noted that the scope of a tortious duty of care is: ‘primarily determinable by reference to what the party owing the duty is at least broadly employed to do or actually does’.
It does not follow that if a party is in breach of the contract pursuant to which it is involved in the project in question, it will be in breach of a duty of care owed to someone who is not a party to that contract.