Duty to Warn, Following Instructions, and the Defective Premises Act 1972

Construction

25 Mar

Introduction

Section 1(1) of the Defective Premises Act 1972 (DPA) provides that a person who takes on work in providing a dwelling must ensure it is done “in a workmanlike or professional manner” and that the result is “fit for habitation.” The DPA can extend liability for defective workmanship beyond the typical six or twelve-year limitation periods - sometimes up to 30 years. As a result, contractors (and other construction professionals) (“Relevant Persons” for the purposes of this article) may face claims long after they would ordinarily be time-barred.

Section 1(2) explains that following instructions, given pursuant to contract, constitutes a defence unless the Relevant Person “owes a duty to that other [person] to warn him of any defects in the instructions and fails to discharge that duty.” Put simply, the DPA does not create a new duty to warn, but it makes clear that a Relevant Person cannot hide behind “following instructions” if such a duty already exists.

Crucially, the legislation does not specify whether any duty to warn must or can be express, implied, or tortious, and recent authority has not definitively clarified Parliament’s intention, although it seems generally assumed that it was to relate to contractual duties alone: that remains untested.

What Is a Duty to Warn?

In the construction context, a duty to warn generally refers to an obligation on Relevant Persons to alert connected parties (often the employer, architect, or engineer) to defects or risks in the design which the Relevant Person has noticed, or reasonably ought to have noticed; or defective workmanship by others.

Express Terms and Implied Terms

It is possible (although, in practice, that is rarely seen) for a contract to explicitly provide that Relevant Persons must warn the employer or contract administrator of any obvious flaws. If so, the Relevant Person cannot rely on following instructions if it knowingly executes a dangerous or substandard design, without having first alerted others to its dangers.

Absent an express clause, the courts may well imply a duty to warn. That duty may be expressed as a function of the usual obligation to perform works with reasonable care and skill. That was the case in Lindenberg v Canning (1992) and Plant Construction plc v Clive Adams Associates & anr [2000]). The cases emphasised that if a design defect is obvious and potentially dangerous, an implied duty to warn is more likely to arise where a Relevant Person has relevant expertise so should have been more likely to identify it.

Duty in Tort

Relevant Persons may owe a duty to warn in tort if a defect poses a risk of potential danger to human beings or damage to property. However, as the duty arises only in those circumstances (as opposed to any circumstance where a reasonably competent Relevant Person knew, or ought to have known, of the defect), it is, to that extent, narrower than in contract.

Key Factors Affecting a Duty to Warn

Design Responsibility

If the contract clearly limits the Relevant Person’s design scope to certain parts of the works (e.g., mechanical and electrical) while the employer’s architect or engineer is responsible for structural design, the law is more reluctant to impose a broad duty to review that design. Nonetheless, an obviously hazardous design may still trigger the duty.

Obviousness and Danger

The courts have indicated that a duty to warn typically arises only for clear or manifestly dangerous defects. Relevant Persons are not expected to undertake invasive inspections to seek to discover hidden defects. But if the design flaw is so obvious that an ordinarily competent Relevant Person ought to notice or seriously suspect danger, the duty might be triggered.

Reliance on Other Professionals

The presence of an architect or engineer specifically appointed to monitor design can diminish the likelihood that a Relevant Person bears a separate duty to warn. Whether the Relevant Person was expected to rely on those professionals is fact-specific, and often an employer’s reliance, or lack thereof, on the Relevant Person’s expertise matters greatly. However, in principle, the more specialised oversight in place, the less a duty to warn typically rests on the Relevant Person.

Conclusion

Construction professionals should be aware that the DPA can resurrect liability for unfit dwellings long after the usual time bars might have closed. Whilst the Act does not (by itself) create a duty to warn, Section 1(2) invalidates the “following instructions” defence if an independent duty to warn existed and was breached.

Whether such a duty arises will depend on factors such as design responsibility, the obviousness of the defect, and the presence of other professionals overseeing design. Nevertheless, if safety or other property is in issue, a Relevant Person who ignores a patent flaw in design risks liability years, or even decades, later.

For tailored legal advice on the Defective Premises Act and its impact on your developments, contact our specialist construction law team.

This article is intended for information purposes only and provides a general overview of the relevant legal topic. It does not constitute legal advice and should not be relied upon as such. While we strive for accuracy, the law is subject to change, and we cannot guarantee that the information is current or applicable to specific circumstances. Costigan King accepts no liability for any reliance placed on this material. For further details concerning the subject of the article or for specific advice, please contact a member of our team.