REUTERS | Alexander Demianchuk

Designers’ liability and their duty to warn

In Cleightonhills v Bembridge Marine Ltd and others, Akenhead J held that a designer could not recover from those involved in a construction project down the line. On the facts, the third parties had not breached their duty of care in tort. The decision also includes some interesting discussions on obiter points, including whether there is a tortious duty to warn a third party of a dangerous design.

The facts

This case arose out of a serious personal injury at a boatyard. I have written about a related claim previously.

Mr Cleightonhills was assisting in moving a boat from a grated platform into a workshop when the floor grating moved beneath him and he fell onto the floor below, suffering severe head injuries.

It was held that the gratings were seriously overloaded and the clips that held the gratings proved to be insufficient to restrain the gratings from moving laterally along the top of the beams. If the grating moved laterally enough it would no longer be supported by the beams and would fall.

Mr Cleightonhills received over £7 million in damages from his employer, Bembridge. In turn, Bembridge claimed against the six parties who were involved in the design, construction or supply of a new building of which the platform was a part.

The case against the designer and structural engineer

Proceedings against Mr Ely (the designer) and Martlett/RMA (the structural engineer) were settled for £2 million and £1.8 million respectively plus costs.

The case against the remaining third parties

The parties accepted that Mr Bennett (the sub-contractor for the supply and construction of the platform), AFL (the sub-sub-contractor for the fabrication of certain platform elements) and Mr Martin (the draftsman) owed a duty of care to Mr Cleightonhills. The question was whether this duty had been breached. Bembridge abandoned its pleaded case that these three parties owed it a duty of care.

Bembridge’s case was that each of the third parties should have realised that the platform’s intended uses were such that it could fail in use and thus foreseeably cause injury to anyone who happened to be on it at the time:

  • Against Mr Bennett it was alleged that in the course of installing the platform, he knew or ought to have known the activities that were to be carried out on the platform. He should have been aware of the need for it to be secure, and that the gratings were securely fixed with an adequate number of clips.
  • The case against AFL and Mr Martin was pleaded on the basis that Mr Martin was aware that the platform was to be used to remove boats, that the boats would be handled by people working on the platform and that the platform had to be safe and secure for those purposes. It was said that AFL and Mr Martin should have specified adequate and safe means for securing the platform to the structure but failed to do so.

Akenhead J’s decision

Akenhead J held that each of the third parties owed a duty of care to Mr Cleightonhills. However, there were no breaches of this duty:

“What the primary complaint really comes down to is whether Mr Bennett, AFL and/or Mr Martin should have known, ascertained or otherwise found out what the precise uses for the Platform were intended to be and should have appreciated that the Platform was in fact materially under-designed for the actually intended uses. I am satisfied and indeed it appears from all the documents available to these three parties that there was nothing on the documents which would in itself have alerted otherwise reasonably competent and careful parties in their respective positions to the fact that the Platform was under-designed…

Therefore, whilst certainly Mr Bennett and Mr Martin were aware that the site was a boatyard and they were aware in very broad terms that the Platform was likely to be used for loading and unloading of boats, they were not aware of the size or weight of the boats, what type of trolley if any would be used, whether any further work or equipment would be deployed to facilitate any boat movements (such as a hoist (such as was used after the accident) or steel or aluminium plates or sheeting on the gratings) or whether people would need routinely to have to go onto the Platform to manhandle boats…”. (Paragraphs 66-67, judgment.)

Akenhead J identified the real problem as Mr Ely and RMA’s failure to understand and appreciate the likely horizontal or lateral load foreseeably likely to be applied to the platform by the way it was to be used.

Obiter points of interest – a duty to warn?

Akenhead J made a number of obiter points. Of particular interest was the discussion on the duty to warn, where he reviewed the authorities (Plant Construction plc v Clive Adams Associates [2000] BLR 137 and Aurum Investments Ltd v Avonforce Ltd [2000] EWHC 184 (TCC)), and stated:

“In my view, there can be little doubt that a failure to warn in the case of potential danger to human beings may give rise to a breach of any duty of care owed to a third party by a party who knows of the danger. I use the word ‘may’ because it is necessary always to review all the circumstances and there might be circumstances which justify not warning. Where the parties are in contract, the duty to warn may extend to dangers of which the party in question should have been aware by reason of its involvement…  In purely tortious circumstances, any duty to warn may not in fact extend to warning the class of persons who might be affected by the danger; it may be limited to warning the party with whom the person required to warn is in contract or to warning the local authority.

In conclusion on this topic, I consider that an obligation to warn may arise in the context of a tortious duty of care, certainly in the case of a danger to people, known to exist by the person who it is said should be giving a warning. This will depend on all the facts and the circumstances including what function and role the person said to be required to warn is fulfilling. All other aspects of the law relating to whether duties of care exist at all and the scope of such duties apply to the issue of whether warnings should be given. It is at least possible that where someone is charged, contractually, with an obligation to ascertain or check whether designs or works are safe for human beings, his or her tortious duty of care may extend to warning or advising about inherent dangers of which he or she should have been aware”. (Paragraphs 78-79, judgment.)

Plant Construction and Aurum Investments considered a situation where a duty to warn arose in the context of a contractual relationship. The facts in this case were one step removed; there was only a tortious relationship between the parties. The question (not one which needed an answer in light of the findings) was whether the third parties breached their duty of care to Mr Cleightonhills by failing to warn him of the danger the platform posed.

When may a duty to warn arise?

It is worth considering the circumstances when a court will hold that a contractor should warn another party as to a defective and dangerous design. It appears that:

  • Where a contractor knows of a danger (actual knowledge), a failure to warn may give rise to a breach of duty owed to a third party. Akenhead J did not go as far as saying it would always result in a breach. There may be circumstances that would not justify a warning and would depend on the function and role the contractor was fulfilling.
  • Where a contractor knows or ought to know of a danger (constructive knowledge), the position is not as straightforward and appears to depend on the exact scope of duty the contractor owed under his or her contract. The duty may be imposed where the contractor was contractually obliged to check whether the designs were safe for people.
  • Where there is a contract between the parties, the court will be more willing to impose a duty to warn on a party.

Thus it appears that the obligation depends on the interaction between the degree of knowledge the contractor has and his exact function and role he is performing. One factor that was not considered but which I consider is relevant is the proximity between the contractor and the third party. If the contractor was not aware of a third party, how would it be able to fulfil its duty to warn him? This goes unanswered in my view.

Conclusion

The case is an example of the difficulty designers may find in apportioning liability down the line. It is a fact-sensitive judgment but raises some interesting points of law. The point I have highlighted regarding a duty to warn a third party may entice claimants to pursue a novel point in the future. In my view, I consider that courts will be cautious in imposing such a duty on contractors.

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