When is a consultant under a duty to warn on a construction project?
The availability of insurance can make professional consultants an attractive target when projects go wrong. The extent to which one party can be liable for the mistakes of others and net contribution clauses are key issues when agreeing appointment documents. But can a consultant be under a duty to warn the client and, if so, what is the extent of this duty?
The TCC looked at this in Goldswain and another –v- Beltec Limited (t/a BCS Consulting) and another) EWHC 556 (TCC). Here it was held that:
- Where a professional consultant is under a contract, it is necessary to determine the scope of its contractual duties – the extent of any duty and its scope depends on what he is engaged to do.
- He will usually be obliged to exercise reasonable skill and care –the duty to warn is only an aspect of this.
- The extent of the duty arises depends on all the circumstances.
- The duty arises when there is an obvious and significant danger either to life and limb or to property or when he ought to have known of such danger.
Any claim alleging a duty to warn will necessarily be fact specific and whether there is any duty at all depends on individual circumstances.
That a failure to warn can give rise to a claim in tort was acknowledged in Cleightonhills v Bembridge Marine Limited and others  EWHC 3449 (TCC). However such a duty is likely to stem from an underlying contract as only such a relationship would justify imposing liability in a party otherwise regarded as a bystander.
The breadth of a consultant’s role certainly opens up such claims. The extent of the duty is not clear – it generally arises for defects in design and method of working and the principle set out in the case above indicate that the duty extends only to danger of death, personal injury or damage to property.
However, the duty to warn is only one aspect of the duty to act with reasonable skill and overlaps with other duties such as those to check the design of others and to inspect and supervise the works. This suggests the duty to warn would be much broader than Goldswain v Beltec suggests. What is a sufficient warning will depend on the contract, the nature of the danger and the circumstances in which it comes to light.
The best solution for both clients and consultants faced with this uncertainty is to cover the extent of this duty in the appointment.