International Construction Law Review
THE CONTRACTOR’S DUTY TO WARN: RECENT DEVELOPMENTS, PRESENT SCOPE AND SOME FUTURE POSSIBILITIES
NICHOLAS A BROWN*
LLB, LLM(QUT), Solicitor (Qld) and Registered Foreign Lawyer (HK), Masons, Hong Kong SAR
For some time now English courts have recognised the existence of a builder’s duty to warn of defects in the owner’s stipulated design. Through a “cautious and incremental”1
and, one might say, an uneven course of development, the duty has gained a footing in English law. It is perhaps surprising that only recently has it received authoritative treatment at an appellate level.
It is proposed, first, to examine briefly the history of the theoretical rationale for the duty under English law, before summarising the current bounds of the duty and speculating on some future possibilities, both in England and, more briefly, in a selection of other common law jurisdictions.
Early rationalisation of the duty—the “Newey Approach”
Reinforced by the leading judgment of Richie J in the Supreme Court of Canada in Brunswick Construction Ltd
v. Nowlan & Ors
2
and the more slender authority of Duncan
v. Blundell
,3
the duty was initially posited upon two separate legal bases. First, upon the seemingly ever-fertile theory of the ad hoc implied term, which promised a particularly attractive rationale for the duty. This was so because the precise content of the term, which reflected a necessary implication to be made in the particular circumstances of the case, could be tailored to give much required business efficacy to the parties’ incomplete written record of the bargain. The second basis for the implication of a duty to warn lay in the tort of negligence.4
* Sincere thanks are due to Dean Lewis, the Hong Kong office’s supervising partner and to Judge Humphrey LLoyd, QC, for very helpful comments on earlier drafts.
1 Aurum Investments Ltd
v. Avonforce Ltd
(2001) TCLR 461 at 465, p. 5, para. 12 (Technology and Construction Court).
2 21 BLR 27. For an expression of contemporaneous criticism of the majority judgment and a preference for the more traditional view (reflected in cases such as Lynch
v. Thorne
[1956] 1 WLR 303) that a contractor is under no implied responsibility to warn of deficiencies or dangers arising from compliance with the contract, see H LLoyd & C Reese, “To warn or not to warn …”, Building
, 26 August 1977 at p. 42.
3 3 Stark 7; 171 ER 749.
4 Ironically, in the Brunswick
case, Laskin J (21 BLR 27 at 34–35) appears not to have based his finding on any imputed obligation, whether contractual or tortious in nature. The judge seems to have relied instead on an absolute obligation to construct works capable of carrying out the duty in question, which overrode the obligation merely to comply with the plans and specifications.
Pt 3]
The Contractor’s Duty to Warn
373