Real-life case study of a successful professional negligence claim against surveyor
Background to the surveyor’s negligence claim – failure to identify the presence of asbestos
Zoe Harker-Smith, a solicitor in our professional negligence team, has successfully concluded a professional negligence claim against a surveyor who failed to identify the presence of asbestos in a property her clients were buying. The surveyor also made a positive misstatement regarding the ceiling material. They categorically stated that the ceilings were plasterboard, when in fact they were asbestos cement board, which is a serious health hazard. The property required full remediation, and our clients had to move into alternative accommodation while the works were carried out.
Key legal issues in the professional negligence case
A key issue in this case was that the surveyor ignored clear indicators of asbestos in the ceiling, and failed to recommend further investigation. Zoe relied on the case of Hart v Large [2021] in respect of the legal duty on a surveyor where there is “a trail of suspicion” to take “reasonable steps to follow the trail”. The surveyor’s failure amounted to a fundamental breach of duty. This was compounded by the positive and incorrect assertion that the ceilings were plasterboard, which deprived our clients of the opportunity to investigate it further.
Having established a strong case for breach of duty, the surveyors made a settlement offer straightaway. However, they argued that a “split the difference” approach to the cost of the remedial works should be adopted. They said this was because our clients were willing purchasers who would have merely negotiated a discounted price for the property had the asbestos issue been identified.
Our clients’ expert evidence supported recovery of the full reinstatement costs due to the serious defect affecting their ability to live in the property. Zoe relied cited the decision in Moore v National Westminster Bank [2018] to support her argument that no reasonable purchaser would have bought the property had they known the extent of the issues, and that reimbursement of full remedial costs was therefore appropriate.
The surveyors also raised the issue of a contractual liability cap, but Zoe successfully challenged this as unenforceable under the Consumer Rights Act 2015, and in light of the requirement for RICS chartered surveyors to hold professional indemnity insurance.
The claim did carry some litigation risk, which included a prior CEDR adjudication – the default alternative dispute resolution provider for RICS – that concluded there was no breach of duty as the survey included generic warnings about possible asbestos. Despite this, we demonstrated that the clients relied on the surveyor’s definitive mis-statement and would have acted differently had the true risk been disclosed, ultimately walking away from the purchase altogether due to the high remediation costs and disruption.
Outcome of the surveyors negligence claim
We achieved a pre-litigation settlement at a level that exceeded expectations, and substantially higher the Defendant’s initial offer. Zoe successfully argued that the court was more likely to award full remediation costs and the final settlement reflected a much higher percentage of those costs in the diminution valuation. Additionally, we recovered 90% of our clients’ legal costs, ensuring that they received almost all of their damages under the ‘no win no fee’ agreement.
This case highlights that a higher settlement amount for diminution in value can be achieved in surveyors cases, rather than the usual method of valuing diminution in value which is typically assessed at 50% of the full remediation costs, or less.
How we can help with your professional negligence claim
We specialise in surveyors negligence, and operate a free consultation service for professional negligence claims against surveyors. We will be happy to assess your case and outline your funding options, including ‘no win, no fee’ in claims where damages are likely to exceed £25,000.
