Callers to our ‘free legal helpline’ frequently ask us, ‘can I sue my surveyor for negligence?’ As this is one of our core areas of practice we are always willing to provide initial guidance on surveyors negligence claims and a free case assessment.
However, for those interested in the law that governs this type of case here is a brief overview of the key principles.
Any claimant will need to prove three things:
- that the surveyor owed them a duty of care;
- that the surveyor breached that duty of care; and
- the Claimant has suffered financial loss.
A surveyor’s duty of care
This can be the most tricky issue. For a duty of care to be owed there needs to be a relationship between the surveyor and the claimant.
This relationship will be clear-cut if the claimant had directly instructed the surveyor and paid for the survey.
However, in practice surveys and particularly valuations can be often be instigated by a lender rather than the property owner. In this case the contractual relationship is between the surveyor and the lender, rather than the surveyor and the property owner.
In these situations, is a duty of care still owed to the property owner by the surveyor?
Fortunately the courts will accept in most cases that if a third party relies on a surveyors report then even if they didn’t commission it themselves then the surveyor will still be liable to them if it is fair, just and reasonable in all the circumstances.
It is important that the surveyor is able to identify who potential claimants are likely to be. So if a surveyor knew that a property owner was paying for a survey that had been requested by the lender and was aware that the report would be relied upon by them then in those circumstances the surveyor will have voluntarily assumed a responsibility towards the property owner.
There are limits to this “voluntary assumption of responsibility”. The courts have been unwilling to hold surveyors liable in commercial transactions on the rationale that more sophisticated property owners should be capable of obtaining their own surveys or valuations.
Another exception might be where a surveyor’s report has been handed onto another party who the surveyor was not aware of. This occasionally occurs where a property transaction breaks down and the original purchaser sells the surveyor’s report on to a new purchaser without the surveyor’s involvement. In this situation the court is likely to consider that it would be unreasonable to impose liability.
What about surveyors who attempt to limit their liability with disclaimers?
Disclaimers can present a problem to potential claimants but they can be overridden.
The Unfair Contract Terms Act 1977 only allows disclaimers that are reasonable taking into account such things as:
a) whether the parties are of equal bargaining power
b) whether it would it be reasonably practicable for the person who relied on the surveyor’s report to have obtained their own? Was there sufficient time? What was the cost?
c) the difficulty of the task being undertaken by the surveyor
d) who instructed the surveyor and who paid their fees
Surveyor’s breach of duty
The surveyor’s breach of duty will usually be case specific. Common allegations are over-valuation of property and failure to identify a serious defect. The usual starting point in determining whether a surveyor has been negligent is to seek a second opinion from another surveyor who will be able to comment on what a reasonably competent surveyor should have advised in those particular circumstances.
We work with a number of surveyors who are experienced in acting as court experts and can obtain a report dealing specifically with breach of duty.
Financial loss arising from the surveyor’s negligence
It is important to link the financial loss which is being claimed to the specific breach of duty that is being alleged. Again it is common to involve experts in determining the level of loss arising and this generally needs to be considered on a case by case basis. Our solicitors are experienced in assessing consequential loss and ensuring that losses claimed and fully supported by documentary evidence.
Alternatively if you would like to discuss your case on a face-to-face basis then you can arrange to see one of our specialist solicitors at our offices in Devon and Somerset.