The recent United Kingdom case Goldswain v Beltec Ltd  EWHC 556 provides very helpful guidance regarding the ‘duty to warn’ that construction professionals and engineers can hold.
Mr Goldswain engaged Beltec to provide a design for works to his basement and then engaged AIMS to do the construction work based on Beltec’s design. Shortly after AIMS commenced construction, a Beltec employee visited the site. He discovered faulty structural works that differed from Beltec’s drawings. He instructed AIMS to replace the faulty works and handed AIMS another copy of the drawings. He did not notify Mr Goldswain about the issue. Nor did he take the matter any further with AIMS, who proceeded to construct contrary to the drawings. Part of the property subsequently collapsed (see here and here).
The Court determined that Beltec did not owe (and therefore did not breach) a duty to warn. In reaching that conclusion, the Court provided a helpful overview of the duty to warn at paragraph 47 of the decision, which can be accessed here. Though this decision is not binding in New Zealand, the overview is very helpful. Here is a quick summary:
- The duty to warn will be assessed within the scope of the professional’s contractual duties and services;
- The duty to warn arises from the professional’s duty to exercise the skill and care of a reasonably competent person of its profession;
- Whether, when and the extent to which a duty to warn arises depends on all the circumstances;
- The duty to warn will often arise where there is an obvious and significant danger of injury or death, or to property. It can also arise where the professional ought to have known of the danger in the circumstances;
- If the danger is nothing more than a future possibility, a duty to warn may not arise;
- The basic standard of care is that of a reasonably competent professional.