Date: Tue, 7 Oct 2008 16:03

From: Robert Stevens

Subject: Duty to Warn

I agree with Jason, although I wouldn't express the potential liability as being one based upon a distinct duty to warn. I don't think some of the replies have noticed that Jason asked about "a duty to warn of dangerous defects (like asbestos, hidden mould, radiation) to purchasers of the property to prevent bodily injury" (emphasis added). 

In contract caveat emptor prevails, as Andrew Tettenborn's lovely example shows. Whatever the economically more efficient rule may be, which is completely unknowable, why in morality should I have to provide you with a valuable piece of information I have and you do not? As with all duties to confer easy benefits upon others (e.g. picking up a baby drowning in an inch of water = fewer dead babies) the economist would say I should do so when there is little cost to me, or less cost to me than the benefit I confer on someone else. That the law does not require me to confer benefits upon other people, either by disclosing to them information I possess and they do not or otherwise, is just part of the general picture that the law cannot be understood in economic terms.

However, if I sell to you a dangerous thing, such as a house, which I know is liable to injure you if I don't warn you, and as a result you are injured you have a claim against me. This claim is a standard Donoghue v Stevenson action. It is for the sale absent the warning which resulted in the claimant's injury which the defendant is liable for. There isn't a distinct duty to warn.

So, unlike Lewis, I think there is a clear claim for a tort in Jason's original question, and I don't think the mere presence of a contract should knock out this claim, anymore than the presence of a contract between the buyer and seller of the ginger beer bottle should knock out the claim for negligently inflicted injury. The law of tort is not implying a duty to warn when the law of contract would not. As Jason says, in order to avoid the liability in tort an adequate warning at any time before the injury occurs should suffice. ("Oh, and I should tell you, that house I sold you - full of poisonous asbestos. I wouldn't move in without doing something about it if I were you.")  

RS

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From: Jason Neyers   
Sent: 07 October 2008 12:05
Subject: Re: RE: ODG: Duty to Warn

Dear Andrew:

I know that some of the cases say that concealment involves a positive misrepresentation but do you find that convincing? What am I representing if I fix a crack in my ceiling and I repaint?

The reason I asked my question is that I think that some of these classic cases on fraudulent misrepresentation in the real estate context are really duty to warn cases in disguise, and that the right that is generating the duty to warn is the right to bodily integrity. If that is right then the warning could come on closing (so long as it was before habitation) and would not be a ground to rescind the contract of sale. Does that seem plausible?  

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