Duties to warn held at bay

A recent TCC decision has rejected an attempt to extend the law as to tortious duties to warn. The case will be welcome news for sub-contractors in particular who are sometimes said to owe duties to warn to employers or other third parties with whom they have no direct contractual relationship.

English law imposes duties on participants to a construction project to warn of dangers or defects in the works or working methods deployed. There are two primary sources for the duty, each varying in scope and content: 

  • Contractual relationships – whether they be with contractors, sub-contractors or consultants – will, subject to express terms to the contrary, usually import an obligation to carry out work or discharge responsibilities with reasonable skill and care. This obligation has been held by the Court of Appeal to carry with it an obligation to warn of dangers in the works perceived by the party concerned. 
  • Common law duties arising in tort have also been held to impose a duty to warn against dangers to human beings actually known about by the party concerned.

The precise extent of the duty arising from each of these sources remains unclear, but it is thought that contractual duties to warn are broader in scope than tortious duties. The recent decision in Stagecoach South Western Trains v Hind reinforces this view. South Western Trains sued the owner of a property whose tree branch fell on a railway line causing damage to one of South Western’s trains and associated disruption. South Western also sued a tree surgeon who had been instructed by the property owner to carry out certain work to the tree and alleged that the tree surgeon owed South Western a duty to warn it of the danger of a falling tree branch.

In dismissing the claim against the tree surgeon, the court made a number of findings in relation to tortious duties to warn:

  1. The court noted that there had not yet been a case where a tortious duty to warn had been owed to third parties in relation to work or defects outside a party’s direct responsibility (the tree surgeon had only been instructed to carry out specific work and not to make a general assessment of the tree). 
  2. Although not ruling out the existence of such a duty in other cases, the court refused to impose such a duty on the tree surgeon in favour of South Western and emphasised the fact that the tree surgeon was only a contractor and not a professional arboriculturalist. 
  3. Assuming such a duty did arise, the court found that it would apply only to matters which were “obviously dangerous”. 
  4. Moreover, any such duty would not require a search to be undertaken for obvious dangers but would only apply to those matters which had come to the tree surgeon’s attention or possibly those which ought to have done so during the course of his work (leaving the question of actual knowledge open for the time being). 

The court’s distinction between professional and non-professional parties, together with its finding that no search is required for “obvious dangers”, will provide comfort to sub-contractors and reduce their potential exposure to third parties in such cases. They will remain subject to broader duties to warn as part of their contractual obligations, but are of course better placed to manage such risks through the agreement of appropriate exclusions or limitations of liability.

This article first appeared in Law-Now, CMS Cameron McKenna's free online information service, and has been reproduced with their permission. For more information about Law-Now, click here.