Very much obliged

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Even without design responsibility, a contractor has an implied duty to warn the employer of possible problems in a design

The concept of “duty to warn” has been the subject of court comment again in recent weeks (see Stephanie Canham’s piece, 9 April). In a new Scottish case, Oil State Industries vs Lagan Construction [2018] CSOH 22, the court looked at an amended JCT clause where the contractor was obliged to warn of any mistake, omission or errors in the employer’s requirements, as well as any inadequacy.

Among the issues was the contractor’s responsibility for the type of finish of an external concrete floor slab. This had been specified in the employer’s requirements as a pan finish. The employer argued this was not in accordance with normal practice as it did not provide slip and skid resistance and that the contractor had a duty to warn of the choice of finish. At preliminary application stage, the contractor challenged the legal basis of a duty to warn as the finish was within the employer’s requirements, but the court found that this ground of claim should go to trial. 

When does a duty to warn of errors or inadequacies in design arise in a construction contract? And what are the consequences of a breach of that duty?

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