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When the duty to warn can become a liability

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I have warned previously that inappropriate labels and misconstrued words can cause disputes (aj 23.7.98). Further support for this was recently provided by clients of mine who owned a horse-riding concern. They asked concrete suppliers to provide concrete to a specification suitable for a 'stable floor'. The suppliers, oblivious to the fact that the customer wanted to concrete over the yard and to provide hard standing for horse lorries and other heavy equine traffic, gave a specification sufficient to ensure that an ordinary floor remained 'stable'.

Here it faced three major hurdles:

it had had no dealings with the manufacturer at all

as the manufacturer had become aware of the defect after installation, the breach alleged was that it remained silent, rather than actually misrepresented the position

a finding in the owner's favour would mean that many other manufacturers would be facing a liability for 'an indeterminate amount to an indeterminate class'.

Although there are situations where the law does provide a remedy for economic loss caused by failure to take care, the court held that this was not one of them. So if manufacturers or designers subsequently discover that their product is flawed, should they follow the example of the supermarkets with a well-publicised and mass withdrawal, or simply keep mum? The answer is - it depends. It depends whether the defect will cause injury to person or property, or merely financial losses. In this case the defendant's gamble paid off - others may not be so lucky.

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