Duty to the client in contract
A surveyor may be liable in damages for negligence arising from of his contract with the client. A contract may be written, oral or a combination of the two. A contract may also be inferred from the respective acting’s of the parties. The Royal Institution of chartered surveyors (RICS) regulations require its members to confirm in writing the terms upon which a report is to be provided before that report is issued. The RISC rules and guidance to its members are available from www.rics.org.
Duty to the client in delict or tort
In addition to the surveyors liability under contract he is also under a concurrent duty in delict or tort to the client following the House of Lords decision of Henderson v Merrett [1995] 2 A.C. 145.
This concurrent duty is important where a contract fails to anticipate the dispute between the parties or where the contract is implied. In circumstances such as this the duty of care of the Surveyor is determined by the standard of ordinary care and skill of a practitioner.
This standard was established in the Scottish case of Hunter v Hanley 1955 SC 200 a case of medical negligence but applying equally to all professional persons: -
“To establish liability by a doctor [or surveyor] where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care.”
Thus to establish the professional negligence of a surveyor the claimant must prove the following:-
(i) What the usual and normal practice is;
(ii) That the professional has not followed this practice and;
(iii) That the surveyor has followed a course of action (or inaction) which no professional surveyor of ordinary skill would have followed.
This standard of care applies whether negligence is based in contract or in delict (see Stewart v HA Brechin & Co [1959] S.C. 306.
Duty to third parties
A surveyor may be liable to third parties such as the vendor or the lender. The courts have held that the extent of a surveyor’s liability to third parties cannot be easily defined.
In general, if a surveyor is aware that third parties may place reliance upon his report then he may be liable to those third parties if the report causes loss as a result of the surveyor’s negligence.
Normally a surveyor attempts to exclude his potential liability to third parties in his contract. The courts have attempted to limit exclusion of liability clauses on the basis that they may be unreasonable. In particular the courts have deemed exclusion of liability clauses to be unfair where the property is of low value and the surveyor knew or ought to have known a third party (the purchaser) would rely upon the valuation.
If a surveyor neither knows or ought to know of third parties relying upon his report it is unlikely the court will find him liable to those third parties in the event of negligence.
If you believe you may have a claim arising from professional negligence please contact us by telephone on 0141 332 0913 or by e-mail to arrange a free initial consultation.