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When is there a duty to warn of possible contract breaches?

Subcontractors often work with designs provided by others. What is the extent of their potential liability for this design? 

The recent case of Cleightonhills v Bembridge Marine confirmed that a contractor’s failure to warn of a known potential danger may give rise to a breach of a duty of care owed to a third party, and that a contractor’s duty to warn its client may also extend to dangers of which it ought to have been aware.

Bembridge commissioned the design and construction of a workshop that included a platform used to lift boats. Mr Cleightonhills suffered serious injuries when a section of this platform gave way.

His claim was settled for £7m and Bembridge sought to recover from the steel erector, specialist fabricator and draughtsman.

All the experts recognised that the design of the platform was inadequate. Bembridge claimed that these subcontractors should have appreciated that the design may lead the platform to fail unless something more than what had been contractually specified was provided.

Court rules on second-guessing

The court held that the subcontractors exercised all the reasonable skill and care that might reasonably be expected considering what they were employed to do.

It also said that a party may be able to discharge its duty of care by retaining a competent party to carry out duties it had contractually assumed.

“Parties down the supply chain must notify their client of any danger of which they become aware”

The court found that steel erectors or draughtsmen would not normally question the design prepared by the structural engineer.

While it would be reasonable for either to warn of an obvious error (such as a missing beam or column), they would not be expected to second guess the engineer’s design assumptions or re-check his design.

Thus they had discharged their tortious duty to Mr Cleightonhills and were not liable to pay a contribution to Bembridge.

Parties down the supply chain must therefore notify their client of any danger of which they become aware. However, the law will be slow to impose duties of care on parties in respect of design that they are not contractually obliged to undertake.

Whether the courts will extend the duty to warn beyond situations where danger may arise to broader commercial considerations remains to be seen.

Steven Carey is head of construction and engineering and James Worthington is a senior associate in the construction and engineering team at Speechly Bircham

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