REUTERS | Navesh Chitrakar

Duty to warn

“Timber!”

However loud or often I say it, will anyone really listen to the warning?

Site can be a dangerous place. Much of what goes on in or around a construction site is, or at least has the potential to be, dangerous. There is a lot of heavy, powerful equipment being moved around, used and stored. While some of the parties who interact on site will have a contract with each other, in fact, many of them don’t.

Did someone have a duty to warn?

The question which frequently arises after an incident is whether anyone had a duty to issue a warning about the “thing” that happened, before it happened. Or put it another way: if you are the manufacturer of a product and the product has the potential to be dangerous, do you have a duty to warn the world and his wife (and/or husband (and/or common law partner)) of the potential danger?

On the basis that there is no contractual relationship between the parties, any such duty will arise as a result of the tort of negligence.

In Coal Pension Properties Limited v Nu-Way Limited, a landlord claimed that the manufacturer of a gas booster owed a duty to warn it about the inherently dangerous nature of the product that exploded and which caused damage to its premises.

By the time of the explosion, the manufacturer had become aware of a number of incidents where the booster had failed. As a result of those incidents, the manufacturer had drawn up an action plan going forward. However, that action plan did not address any of the boosters which were currently in use.

One of the questions for the court was whether a general warning should have been issued by the manufacturer.

The existence of a general duty to warn (as opposed to a contractual duty) depends, like so many things in life, on “all the circumstances”, including the degree of danger and the obviousness to the reasonable user.  However, quite pragmatically, the law wants to try and avoid unduly scaring the general public. If there is an obvious and serious danger, reasonable steps need to be taken to bring the danger to the attention of those who may be affected.

How far should the warning go?

This does, of course, beg the question as to how far one has to go to fulfil their duty. Who should they tell and how should they tell them?

As always, the law raises more questions than it answers. In this case, the fact that there had been earlier similar incidents meant that warnings should have been issued to all owners of the equipment. Query how a manufacturer identifies all the owners of its equipment. Would an advert in the general and trade press suffice? The case does not provide the answer.

Is a recall necessary?

The court held that a warning of the need to carry out regular and proper maintenance, rather than a general product recall, would have been reasonable and sufficient to discharge the duty of care in this case.  It also held that a warning of “catastrophic failure” was not necessary, as it would have caused “undue alarm”. How someone can be “unduly alarmed” about the risks of an explosion may well be a mystery to the likes of you and me.

What if?

And then, of course, there is the “what if” factor, otherwise known as causation.  Even if the manufacturer had told the landlord about the risk and the possible ways to avert it, would it have listened and have done something about it, or would it have simply ignored the advice and gone merrily about its business on that fateful day?

Many duty to warn claims fail (as this one did), not because there is no duty but because the claimant cannot prove that, even if an appropriate warning had been given, it would have heeded that advice and taken the suggested steps to avert the danger.

Do you always do as you are told?

How often do you disregard warning signs? Never? Come on, tell the truth. “Sometimes”, is more probably the truthful answer. I know that is the position in my case.

In your heart of hearts, would you recommend bringing a claim on the basis of a “sometimes”? In addition, you would want to be pretty sure that the person who stands up and gives evidence that they would have definitely acted on the advice given (if it had been given) has the right temperament and personality. Are you sure there is not the possibility that a court might find that your main witness is far too dominant and headstrong and would never have listened or done anything about anything that anyone ever said?

Establishing the duty may be the easy thing; the proof of the pudding is likely to be in the listening.

4 thoughts on “Duty to warn

  1. If you are thinking about the duty to warn in a different context, where a party might have a duty to warn about an issue of quality or the use of particular materials, J Murphy & Sons Limited v Johnston Prevast Limited [2008] EWHC 3024 (TCC), may also be worth a look.

    Here the court found that there is an implied term in supply contracts such that, if a supplier knows, or ought reasonably to know, that a certain material would, or might, create problems when used in conjunction with the supplier’s product, they are obliged to warn the customer. This is the case even if they find out about the proposed use after the contract has been made.

  2. If you are thinking about the duty to warn in a different context, where a party might have a duty to warn about an issue of quality or the use of particular materials, J Murphy & Sons Limited v Johnston Prevast Limited [2008] EWHC 3024 (TCC), may also be worth a look.

    Here the court found that there is an implied term in supply contracts such that, if a supplier knows, or ought reasonably to know, that a certain material would, or might, create problems when used in conjunction with the supplier’s product, they are obliged to warn the customer. This is the case even if they find out about the proposed use after the contract has been made.

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