Last edited 06 Oct 2020

Duty to warn in construction

There is no general duty to warn in English law, however, there are circumstances in which such a duty can exist.

There may be a duty of care in tort to warn a third party of a known potential danger, and where there is a contract, a duty to warn may extend to dangers of which a party ought to have been aware.

In Cleightonhills v Bembridge Marine (2012) , Mr Justice Akenhead stated that “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.”

Where there is a danger to health and safety, it may not be enough to simply warn of the danger, it may be necessary to do so vigorously, or to refuse to proceed with the works. In Plant Construction plc v Clive Adams Associates and JHM Construction Services Ltd, JHM did warn of problems but were found to be in breach anyway because they had not protested enough.

In addition, there may be a limited express duty to point out discrepancies in the contract documents.

These duties are fairly restricted; it must be reasonable to impose a duty to warn in the circumstances. However, it is an evolving area of law, and it is possible in the future that the courts could extend the duty to warn to broader commercial issues, rather than just where there is a potential danger.

NB: On NEC contracts, both parties must give early warning of anything that may delay the works, or increase costs. They should then hold an early warning meeting to discuss how to avoid or mitigate impacts on the project. In the case of a compensation event, if the contractor fails to give early warning of a possible delay to the works, or increase in costs, they will only be compensated for effects that would have remained anyway even if they had given early warning.