Liability of Surveyors for Negligence, Essay Example

For a claim against surveyors due to negligence to succeed, the claimant must be able to prove three facts; firstly, they must effectively establish that the negligent surveyor owed them a ‘duty of care’, secondly, they must demonstrate that the defendant breached this duty of care. Thirdly, the claimant must be able to show that the defendant’s breach of the duty of care has resulted in some kind of damage¹. When studying any instance of surveyor liability for negligence, it is necessary to relate back to these three instances in order to ensure that the established cases could be well understood; any case law decisions that are made on this topic were likely made based mainly on these principles.

The first requirement in a case of surveyor negligence, the establishment of a duty of care resulted from a decision made in Donoghue v. Stevenson². In this famous case, Lord Atkin aimed to develop a principle that would cease many of the restraints imposed upon claimants by the doctrine of privity of contract for such matters. In his main statement, Lord Atkin claimed that to be ethically and morally correct, one must take steps to avoid hurting others; this concept is reflected in law and should therefore extend to surveyor contracts. The speech used treatment of neighbours as an example and as such, this concept came to be known as the neighbour principle. Although Lord Donoghue had many critics that stated this principle only applied to this specific case and that it is obvious that manufacturers should not intentionally harm their clients, Lord Macmillian voiced his opinion in the Donoghue v. Stevenson case that the “categories of negligence are never closed”. Later cases determined that the decision made in Donoghue v. Stevenson could be relevant in many situations and in 1970, Lord Reid argued in Home Office v. Dorset Yacht Co³. Ltd that the neighbour principle should be applied in all cases except those in which a valid exclusion could be argued. Anns v. Merton London Borough Council [1978]⁴ expanded the concept of the neighbour principle which resulted in the courts developing a two stage test to determine when a duty of care could arise in an individual situation. The first step of this two stage test is known as “the relationship of proximity”, which makes use of Lord Atkin’s neighbour principle and the second step of this process is to determine a “sufficient relationship of proximity”. Since this decision however, the courts have decided to place a lesser focus on policy considerations when they attempt to define duty of care. The most modern approach to duty of care was defined by Lord Oliver, and his idea suggest that case law should be the main information used to make this decision; specifically he said: “Is the situation before the court covered by an existing House of Lords case which states that a common law care of duty is owed here?”⁵. Lord Oliver continued to explain that if the answer to this question is yes, then a prima facie duty of care is necessary in the situation; however, if the answer to this question is a no, four tests should be used to determine the duty of care of the case. These four tests include determining whether the damage suffered by the plaintiff was reasonably foreseeable, whether there was sufficient proximity between the plaintiff and defendant that the plaintiff has reason to notice and adjust themselves accordingly, whether it is just or reasonable to place a duty of care on the defendant, and whether the implementation of the duty of care is justifiably incremental. If all four tests are conducted and these principles are satisfied, then the defendant will owe a duty of care to the plaintiff.

The law provides simpler standards for “breach of duty and standard of care” when the person who breaches the duty is not a professional person; however, this relationship becomes more difficult to handle when a professional person does become involved. This is primarily because this relationship could involve multiple third parties; in fact, when a breach of duty is observed, a professional person or entity is usually involved. Since this is a difficult process to determine, the courts have developed a two stage process to determine whether a breach of duty has occurred. It is often easier for the plaintiff to establish that a duty of care exists, but more difficult to prove that it has been breached. To determine whether the duty of care has in fact been breached, they must determine what the standards of care were required in the specific situation and they must determine whether the defendant fell below this standard. The principle that separates general negligence from professional negligence in this category is considered to be a test of reasonable foresight; the court must determine whether an ordinary man would have acted in this same way. If an ordinary man would have not been provided with materials that define the scope of the negligence, the negligence is considered professional. The case of Bolam v. Friern Hospital Management Committee [1957]⁶ provided case law that defines professional negligence in cases of surveyor negligence; although this case was an example of negligence, it demonstrates that the “ordinary man test” is applicable in all situations that involve negligence claims.

The third principle that courts must consider in cases of surveyor negligence is whether or not damage was suffered by the plaintiff. It is essential to note that the definition of “damage” could vary greatly depending upon the individual case and could range from property damage to the harm of the individual. According to case law, certain factors known as novus actus interveniens are able to undermine the plaintiff’s case for damages. Another important modality to consider in determining whether damages have actually occurred are situations in which more than one case for damages were present at the time of the purported surveyor negligence. Although it is difficult to determine the exact situations that will result in where the blame is placed, two examples of case lawattempt to explain how “damage” will be defined in this situation. Firstly, in McGhee v. National Coal Board [1972]⁷, the second situation that could have presented the damage was not enough to sufficiently clear the defendant from responsibility. Second, in Wilsher v. Essex Area Health Authority [1987]⁸, the plaintiff became blind and blamed the surveyor for negligence; however, it was determined that six individual reasons caused the plaintiff to become blind and only one reason was due to the actions of the defendant. As a consequence, the “damage” in the case was not the defendant’s fault because it is likely that the plaintiff would have become blind anyway without his actions.

Other factors that need to be considered during the determination of damage as a result of negligence include determining the remoteness of damage and reasonable foreseeability. Case law has determined that “the anticipations of the person whose negligent act has produced the damage are irrelevant” and that the defendant could only be held for damage in situations in which the defendant could have foreseen the damage as a possibility. Remoteness of damage has been further defined to account for the type of damage rather than the amount of damage as foreseeable.

Although the aforementioned case laws provide the basis for the treatment of negligent surveyors, recent cases continue to define the responsibility of the surveyor to the plaintiff if they are found responsible for damages. One example of a recent case that has adhered tightly to the policies established by the aforementioned cases is Merrett v. Babb⁹. In this case, Merrett and her mother bought a home in Falmath subject to the mortgage that would be provided to them from a lending organization. However, before the mortgage could be approved, the lending organization hired surveyors to examine the property; this examination was led by a man named Mr. Babb. In the suit, Miss Merrett claimed that Mr. Babb failed to report cracks between the property of interest and an extension, which greatly reduced the value of the property; as a consequence, Miss Merrett and her mother wanted to receive the monetary difference of the property that Mr. Babb failed to report. During the time that this claim was being processed, the surveyor’s company became insolvent and the professional indemnity insurance had been cancelled due to the bankruptcy. It is important to note that the purchasers did not rely on a second opinion from surveyors on their own account.

The plaintiffs argued that Mr. Babb breached a duty of care and he was personally responsible for the money owed because his company became insolvent. However, Mr. Babb explained that to hold him personally responsible for this incident, the plaintiff needed to demonstrate that he had personally assumed responsibility. His main argument was this his responsibility was to his firm and not the purchasers because he was not acting on their behalf. The court found that Mr. Babb was responsible for giving the difference of the property value to Miss Merrett because there was clear evidence of duty of care, breach of contract, and damages suffered. More importantly, this case continues to serve as relevant case law for similar situations; it states that this case is able to increase “the categories of ‘professional persons’ who may be held to owe a duty of care personally to those who rely on their services as well as to their employers”. As a consequence, it is recommended that professionals need to be insured independently of their employers for services they provide on behalf of their employers.

As demonstrated in the above example, case laws are constantly being added to the law book so a responsible lawyer should be constantly aware of these cases in order to best guide his or her clients. However, the basis for these decisions must be based on the ability of the plaintiff and their defense to establish that there is a duty of care, that the contract that has established that the duty of care has been breached, and that there was some form of damages suffered by the plaintiff; as long as these three conditions are met, the plaintiff will likely win the case. However, it is important to understand that these laws are continually being modified to fit new and unique situations; therefore a complete understanding of case law is necessary in order to counsel plaintiffs and defendants on their surveyor negligence claims.

References

Lord Wright in Lochgelly Iron & Coal Co. v M’Mullan [1934] AC 1

Donoghue v. Stevenson [1932] AC 562

Home Office v. Dorset Yacht Co[1970] AC 1004

Anns v. Merton London Borough Council [1978] AC 728

Caparo Industries plc v. Dickman [1990] 2 AC 605

Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118

McGhee v. National Coal Board [1972] 3 All ER 1008

Wilsher v. Essex Area Health Authority [1987] 2 WLR 425

Merrett v. Babb [2001]