Before You Sign | Negligent Misstatements

10 April 2019 Before

It's important to be careful when writing not to give misleading or dangerous advice. Imagine you wrote an article setting out your Banana and Beetroot Miracle Detox Diet. Six months later you receive a letter from a firm of solicitors. Their client followed the instructions set out in your article, suffered gastric upset and is claiming damages for personal injuries including vast projected loss of income as he had to turn down an opportunity to be a Love Island contestant. Your publishers point at the indemnity you signed stating that your article would contain nothing dangerous, and look to you to pay up. Are you liable?

Physical damage

In law, you owe a duty of care not to make false statements that results in physical harm. The reader would have to show that you had been negligent by not taking proper care when writing your work. You would not be negligent if you had relied on a proper source that later turned out to be incorrect, or if you had made a simple mistake despite excellent checking procedures.

The reader would also have to show that it was reasonable to rely on your statement. A court is likely to find that fiction, however realistic, was not intended to be followed, however, a serious instruction manual written negligently could well give rise to liability. A doctor writing a medical textbook for GPs would be entitled to assume that the reader had a large amount of relevant skill and knowledge and would not rely entirely on the book, but a court is very likely to decide that a diet book, DIY car repair manual or a step-by-step how-to film or video was intended to be authoritative.

It is therefore important, if you are writing work that could lead to physical injury, that you make it entirely clear whether your advice should be followed or whether you are suggesting that the reader should take other professional advice.

The user would have to show that he or she did rely on your book, and that the reliance caused the damage. Your dieter would have to show not only that he had become ill but also that he had followed the instructions correctly and that it was your mistake (e.g. underestimating the toxicity of bananas) that caused the illness.

Economic loss

The circumstances in which a reader or viewer can claim for purely financial loss are far more limited. Courts are wary of creating financial responsibility to a large and indefinable group. An author will not be held liable where a statement is put into more or less general circulation and may foreseeably be relied upon by strangers for any one of a variety of different purposes in which the author had no specific reason to anticipate. A court might well find that riches flowing from the Love Island contract were too remote and could not have been foreseen.

0bsolescence

You would probably not be at risk if instructions were followed in an old work that had become out-of-date; the date of publication would put a reader on notice of when the information was accurate. How long a work could reasonably be expected to be up-to-date would vary; perhaps less than a year if giving advice in an area such as cancer, perhaps 10 years for a cookbook.

Disclaimers

Even a slight risk of being sued makes authors consider inserting a disclaimer. However, disclaimers are unattractive. If you are writing advice that you intend to be authoritative, you hardly want to tell readers that they will have to check your information elsewhere.

Further, the very presence of a disclaimer may make a court think that you are anticipating that readers will rely on your work, and that you therefore should have been extra careful in checking every fact when writing it; i.e. it will help to prove negligence. It is no good putting a disclaimer in tiny writing, as a court will want to know whether it was brought to the reader's attention. Finally the Consumer Rights Act 2015 states that you are not entitled to exclude liability for death or personal injury, and that disclaimers given in the course of one's business are limited to those which are reasonable and fair.

How can you avoid claims?

If you have a publisher, they will often deal with litigation and bear the costs, but your publishing agreement will contain indemnities. You should ensure that these are as limited as possible, in line with the advice given in our Guide to Publishing Contracts. If you don't intend your book to be relied on, or mean it only to be used in addition to professional advice, make this clear.

Most important, try to get it right, and make sure you check your work properly. If you are writing advice on which someone is likely to rely, and you are representing yourself as an expert, then it is important for your reputation as well as for their safety that the book is correct. At the very least, your credibility and your relationship with publishers could be seriously damaged. Everyone hates fact-checking and proofreading – it is the least glamorous part of writing. But it is absolutely necessary; particularly if you write on subjects like 'teach yourself hang-gliding'.

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