Free Essay Example - Law of Surveyors

All professionals in life, including surveyors, need to carry out their duty with care to ensure there is no harm caused to other parties. This explains why professionals are supposed to have a professional indemnity insurance policy to cover any potential claims of harm by their clients or third parties (Gamage, 2018, p.11). However, due to the professionalism exercised while dispensing their services, potential claims need not be that extreme given the disciplined approach surveyors adopt when performing their work. Professionalism and integrity in the work of a survey professional should protect the client and all other third parties within the scope of the work done. Claims on the professionalism of a surveyor may occur in two situations. First is when a professional surveyor breach an implied or expressed term of the contract entered between the surveyor and the client. Secondly is a non-contractual claim, which is classified under the common law tort of negligence. Negligence can be in the form of misstatement to the third party or the client. However, third parties can only claim a surveyor's negligence if they rely upon the surveyor's report to make decisions or perform an action. There is a distinction between contract and tort for negligence claims, but in most instances, the two occur concurrently.

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What is the surveyors' duty in negligence?

For any third party or client who makes a non-contractual claim of tort of negligence against a professional surveyor must be able to prove four things (Tan, 2015, p. 33). First, the surveyor had the duty of care but did not dispense his duty diligently. Secondly, the surveyor did not dispense his duty of care diligently in his work, thus breached his duty for care. Third, there exists a causal link between the harm or damage caused and the breach of his duty for care. Fort, the surveyor's act of negligence likely caused the damage claimed. In the event a third party can prove the four items named above, a successful claim of tort of negligence can be made against a surveyor. However, if there is a slight difference in the invariability of loss for physical loss and economic loss. For economic losses, the tort of negligence claims are based on the economic loss suffered, and the claiming party must be able to prove that the surveyor had the responsibility of protecting the economic loss suffered. And to the client, a surveyor owes the principal duty of care; hence in case of a negligence claim from the client, then the surveyor can be sued for both tort of negligence and breach of contract.

Who is a third party?

A third party to a surveyor is any other person in a contractual agreement with the surveyor, but in exceptional situations, a third party may have contractual rights that are not coved in a paper. Third parties that owe surveyors the duty of care include mortgagees, mortgagors, and purchasers. In the event a surveyor comes up with a report that is not truthful and is aware that the report shall be relied upon by other parties to make informed decisions then the surveyor can be sued for tort of negligence by the parties that will use the report in the event they suffer ant losses out of reliance on the surveyor's report. According to Luntz, Hambly Burns, Dietrich, Foster, Harder and Grant (2017, p.68), in the case of Cann -v- Wilson (1888) 39 Ch. D 39 surveyor, the court held the surveyor liable for negligence and paid loss suffered by the mortgagee.

Tort of negligence

Negligence is failing to exercise ethics in specified scenarios. It lies within the concept that actions should be put into practice reasonably and that while doing this, a person should beware of the potential harm that might be caused. When a professional fails to adhere to his professional ethics while performing a duty, negative consequences are likely to occur. Such harm caused lies within the area of tort law referred to as negligence. Negligence can lead to suing if someone else suffers any damages or losses caused by another person's act of negligence. Amongst the effects or damages of the act of negligence are; economic loss, property harm, psychological illness, among others.

The tort of negligence by Jenny

In this case, Jenny owed the principal duty of care to the mortgage lender and Nigel, the purchaser of the property, as a third party. Jenny failed to properly conduct the survey work by neglecting to consider the damages caused to the building by a bomb dropped during the Second World War. Nigel's friend, Tom, later realizes that the walls of the building have cracks due to improper repair after the effects of the bomb. Also, Jenny should have noticed that the damp proof course had deteriorated and reported it in the survey report. However, Jenny fails to consider all these as a professional and approved the building for the mortgage. Jenny's act of negligence causes the photocopier to overheat and injure Nigel, causes damage to Nigel's newly decorated office. The defendant, in this case, Jenny is liable to the consequences of his acts. Nigel suffers a great loss in terms of infrastructure repair, as well as to treat himself because of the injuries. Nigel's office is also closed for a duration of time, causing Nigel loss too. In this case, Nigel has the right to legally seek remedy for any loss caused to him, and a court order will be issued to the defendant after a complete search has been done.

Furthermore, surveyors are supposed to consider all procedures while conducting surveys. Any breach or omission is an act of negligence and liable to jurisdiction. In this case, Jenny was supposed to follow all the procedures in his survey work before making a final report. Jenny was to check and ensure that the building is built within all the architectural standards. Contrary, Jenny unprofessionally violated this and approved the mortgage on the basis that there are no major structural problems to the building and that his report is provided without liability on the part of the surveyor. By considering the elements of a negligence action, Jenny is liable. He should have provided a correct report detailing the risks of buying the house that the house suffered the effects of world war two bombing. In this case, the jurisdiction may establish that the defendant owed a duty to the plaintiff. Tests done in such cases are both objective and subjective. Any reasonable person would have questioned the effects of the bombing to the building and not write an approval report objectively and based on ground-facts or realities.

An element to a negligence action states that the defendant has a duty to others, including the plaintiff, to exercise reasonable care. There are responsibilities that have been put by law to ensure that any professional, including surveyors, practice their duties with care. And in this case the plaintiff is the intended beneficiary. In the tort of negligence, duty of care is used while determining the existence of a responsibility that is legal. A duty of care makes a professional owe an individual for acts performed or services provided. Such duties should have reasonable foresight and consider the effects a service may have on others. If the act or failure to act by a service provider causes any harm, an organization affected may claim compensation for the damages. A surveyor may be guarded by some clauses like, for our case, Jenny writes in the report that "this report is provided without liability on the part of the surveyor." However, Jenny, a building surveyor, still owes a duty of care to the purchaser, Nigel, even though the service may have been performed contractually within limitations or confidential clauses. Jenny could have foreseen the damages caused by the bombing and discharge his duty of care by advising Nigel to get the ventilators repaired.

A defendant's act or omission may cause injury to the plaintiff. This element is referred to as causation. It is a casual relationship between a defendant's conduct and the end result. One is liable for an act of negligence if there is necessary proof that the injury was caused by a negligent act and that connections between the act and negligence are legally sufficient. A basic test is to ask if the injury caused would have occurred with or without a breach of duty. This is also referred to as factual causation (Hodgson, 2015, p. 16). A breaching party can be sued if it materially increases the risk of harm to others. It is advised that factual causation be done before inquiring into causation by checking if the defendant acted in the plaintiff's loss. On the other hand, the idea of legal accusation might view an act of negligence as too remote for a plaintiff's injury. Such disparity views trouble the judiciary. Nigel can sue Jenny for his act of negligence that caused him injury. To claim compensation for pecuniary losses, Nigel, the plaintiff, who was injured by the overheating photocopier, may show proof that he had to pay for a medical bill. To claim for the damages of his property, he is supposed to show the income he lost and the costs incurred in damages repairs.

The Grounds Nigel can Sue Jenny.

Nigel can sue Jenny, the local surveyor, for his act of negligence. This is the most common tort of all tort cases. It occurs when the person responsible for committing a crime has been careless. Nigel can prove that the surveyor neglected based on the following elements. First, surveyors have an obligation to either do or not do something that may harm the other (Senaratne, 2015). In this case, Nigel expected the surveyor, Jenny, to conduct a detailed inspection of the property's condition. Jerry was supposed to be objective by giving appropriate and clear advice and not let his own interests or sentiments cloud his judgment. It is the surveyors' duty to provide an accurate report pointing out that there were existing structural problems like subsidence or walls that are unstable. It was also Jenny's duty to highlight any major alterations or repairs needed, for instance, the fixing of the damp proof course. However, Jenny failed in his survey job by not noticing that the walls of the building had cracks and that some of its other structural features were not in good condition. Later on, jenny approves the building fit. The consequences later are adverse as Nigel suffers great loss both financially and physically. One of the core guidelines for surveyors is to be accountable for all actions and by taking full responsibility for all acts and not putting the blame on others. Therefore, it will be in accordance with the law if Nigel sues the surveyor for his act of negligence.

Nigel also expected Jenny not to breach any part of his duty as a professional surveyor. According to the rulings of the case Strover-v-Harrington [1988] Ch. 390 A, breach in practice makes the surveyor guilty (Harris, 2017, p66). Thus, surveyor should have the courage to take a stand by providing correct and credible reports for decision making. Jenny was also expected to be honest and trustworthy in all he does. While doing this, Jenny should not have given any information that is misleading by either holding or distorting it. Jenny's survey report failed to inform Nigel of any potential risks that could have arisen from the purchase of the building. The law requires Nigel to establish proof that Jenny owned a duty of care to him. And in this case, the surveyor, being a professional, was expected to conduct his job ethically and guided by all his conduct. However, Jenny fails to meet the obligation to the plaintiff that puts Nigel in the way of harm. The court will want to see whether the defendant breached his duty by doing or not doing what a reasonably prudent person would have done.