UK: Heed This Warning

Last Updated: 19 May 2009
Article by Sarah-Jane Archdale and Giles Tagg

Does a manufacturer or supplier of goods, materials or equipment have an obligation to warn its customer if it subsequently discovers faults or shortcomings in them? If a warning is not given when it should have been, does this mean that the manufacturer or supplier is liable to pay damages? The recent case of Coal Pension Properties v Nu-Way sheds some light on these issues.


Coal Pension Properties (CPP) was the freeholder of an Oxford Street store occupied by BHS. It sought to recover damages resulting from an explosion in a gas booster designed and produced by Nu-Way and installed at the BHS store in 1986.

The accident at BHS was not the first time that there had been an incident involving a Nu-Way booster. Several separate events had been investigated and recorded by Nu-Way between 1990 and 2001. As a result of these investigations a modified version of the booster was produced. By 1998 Nu-Way was aware that the boosters with the old style fan casing could be damaged in the event of spindle failure and if damaged there would be no protection against a gas leak.

Although Nu-Way issued product guarantee reports, it failed to draw attention to the risks in relation to the unmodified boosters. CPP asserted that Nu-Way had failed to issue adequate warnings in light of the product history.

Conversely, Nu-Way argued that it had provided sufficient warnings and also raised a causation argument, stating that even if it had given a warning in the terms CPP required it is likely that they would have been ignored, and the explosion would have occurred anyway.

The law

The law requires a manufacturer or supplier to warn its customers of serious dangers in goods, materials or equipment supplied. However, to succeed in recovering substantial damages the claimant has to prove causation by establishing they would have heeded the warning and therefore the loss would not have occurred. The duty to warn of manufacturing defaults is generally limited to situations where the default poses a risk to people or damage to property. It is unlikely that such a duty would be extended to situations where only pure economic loss is suffered, unless it could be argued that the defendant had assumed responsibility for such economic loss.

Additionally, the General Product Safety Regulations 2005 impose obligations in relation to unsafe products. Among other things, the regulations require producers to provide consumers with information to enable them to assess the risks inherent in a product throughout the normal period of its use, where such risks are not immediately obvious, so that consumers can take precautions against such risks.

Should a warning have been given?

The Court held that Nu-Way had failed to provide adequate warnings which specifically addressed the risk to the gas booster fan casing. This risk had been addressed by manufacturing modifications, but unmodified boosters were still in operation, and the additional instructions issued by Nu-Way did not make recipients aware of the risks.

Would loss have been avoided if a warning was given?

The issue of causation was paramount in this case. Merely establishing that there was a duty to warn and that this duty had been breached was not enough to claim substantial damages. The court needed to be convinced that the warning would have been acted upon. The court analysed BHS's approach to maintenance and held that its maintenance regime was poor. It found that even if an adequate warning had been given, on the balance of probabilities CPP would not have acted upon it, and therefore the loss would not have been avoided.

On a practical level this creates an onerous level of proof for any claimant. In this instance that required detailed records of maintenance and supervision in the form of work-sheets, maintenance logs, inspection labels and asset registers. BHS was unable to produce an adequate amount of documentation to support CPP's case.

Construction implications

The duty to warn in construction projects is particularly pertinent.

  • A contractor will have an implied duty to warn the employer where they know (or believe) that that the design is defective and may pose a risk to personal safety
  • A duty to warn may also be implied where the contractor did not know, but ought to have known that a design was dangerous

Whether a duty is owed depends on the nature of the works, the relationship with other parties on site, their experience, and the seriousness of the risks posed.

In situations where a consultant, such as an architect, is in a supervisory role this duty may extend to include an implied duty to warn of deficiencies in the performance of other consultants.


Regardless of whether a warning should or should not have been given if, a court can be persuaded that such a warning would not have been observed, then the duty to warn is largely immaterial for the purpose of recovering damages at common law. In this instance, the manufacturer should have given a specific warning, but did not. The only reason it escaped liability was because the warning would not have been followed.

Reference: Coal Pension Properties Ltd v Nu-Way Ltd [2009] EWHC 824 (TCC)

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 13/05/2009.

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