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Date: Tue, 7 Oct 2008 17:39

From: Lewis Klar

Subject: Duty to Warn

 

In my mind, the issue is more complicated than Robert's response suggests.

No-one would doubt that there is a tort claim if a dangerous house or product causes physical injury. I do not think we are talking about that. The issue is whether once a dangerous defect in a house is discovered by the purchaser, prior to injury, the buyer has a right to damages in tort to repair the defect. This brings us back to Winnipeg Condominium, and like cases. It raises all sorts of issues. What is a dangerous defect which threatens life or health? (I do not think termites qualify.)  What is the extent of the claim - to make it safe or to make it look good?  Does the danger have to be imminent? (The Canadian cases by the way speak of defects which make the premises "unfit for habitation". This has included houses which did not conform to building code requirements but were not dangerous or even uninhabitable.)  So, if you liked Winnipeg Condominium (which I personally do not) you have no problem with answering Jason's question positively.  But if you think tort should not be used to improve poor contractual agreements affecting one's finances, you may not want to go there.

  

Lewis

  

>>> Robert Stevens 10/7/2008 9:03 AM >>>

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.")  

 

 


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