When a person is said to be liable for an action under the law, it means that they are responsible in some way for the outcome that results either in the law of a nation to be violated which comes under criminal liability, or in an injury to other individuals that is considered to be a civil liability. The main requirement for a liability happens to be intent1, which says that, an individual is not responsible for something that they did not mean to do. However, the Law of England and Wales acknowledges the concept negligence as the way of holding an individual accountable when they fail to make the suitable decisions even if they did not intend to cause any kind of harm. This assignment would focus on the circumstances under which Surveyors have been held liable for negligence.
Before we discuss a case law, we must have a clear understanding of the duties of a surveyor and the circumstances in which he can be charged with negligence. A surveyor is an individual who checks out or surveys a situation or property for the individual who hires him2. It could be construction companies who want a building site checked, insurance companies who would want a damaged checked before they pay for the damages or buyers who would want a property inspected when before they buy it. it is a well known fact that the English Law operates on the principle of caveat emptor3that means let the buyer beware. Who owes the duty?
If a buyer instructs a surveyor to carry out a survey on his behalf, then the surveyor owes the buyer a duty of care4 in both negligence and contract. This precise duty is generally defined by the agreement between the two. It is seen that in the majority of cases, the buyer is financed by a mortgage and very often, the lender needs a surveyor to carry out valuation that would be paid for by the borrower. A lot of buyers, more often than not, do not tend to get hold of any other form of statement from the surveyor. In a mortgage “survey” there usually happens to be one valuation which is thus far less wide-ranging in assessment in comparison to the survey that is carried out for the buyer. Irrespective of all the circumstances, the surveyor is expected to be able to identify all the major problems that may affect the value of the property and he would be liable to the lender, if he, because of his negligence fails to do as needed.
If we look at the case of Smith-v-bush and Harris-v-Wye Forest, in 1990, House of the Lords, we will see that even though there remains no direct link in between the buyer and the surveyor, but then the Distract Council gave a verdict in favor of the buyer stating that the surveyor did owe the buyer a duty of care. The House of Lords was influenced by public policy considerations, and decided that it was not unreasonable for the buyer of a “modest house” to rely on the valuation and the house of Lords were also of the opinion that the attempt taken by the surveyor to exclude liability by notice or/and contract terms failed to be unreasonable and thus he was charged with negligence. Consequences of the Surveyor’s negligence
If negligence of duty of care has been established, that it becomes necessary for the purchaser to show that the surveyor has breached the duty. This may cause problems in some cases, it won’t be too difficult in situation where, for example the surveyor by negligence has failed to spot major defects in the property. In case the breach gets established, then it becomes necessary to show that the breach has successfully caused a loss. The courts of England hold that the surveyor who is negligent does not remain liable to pay the costs of repair. Instead, he is only liable for the damages that are “diminution in value”5.
This talks about the difference in between the actual value or worth of the property with the defect and without it. In many cases it is seen that the cost of repair of damages is lesser than the cost of repair and sometimes it may even sum up to be negligible. The calculation of damages usually happens to be complex and there may arise some particularly difficult questions like the buyer may not have proceeded with the purchase had he been aware of the defects and thet since the time of the purchase, there was seen substancisl fall in the prices of the property, as was seen in the case of Smith-v-bush and Harris-v-Wye Forest, in 1990, House of the Lords. Negligence and its principles
Negligence is the most significant modern tort. Normally other torts are identified with the help of the particular interest of the claimant that is strictly protected. Like, defamation protects the interests that are in reputation and the nuisance that protects a person’s use and the enjoyment of the land. On the other hand negligence protects the number of interests and the only factor that is the defendant’s conduct that must be labeled as negligent if any liability arises. There are three interests that can be identified as the one being protected by the tort of negligence. The instances that are covered by Negligence are economic interest, protection against personal injury, recovery of damage to property, economic loss on damage to a person and damage to property. Negligence has expanded so quickly in no point time that it seemed possible that it would make other trots redundant in no time.
The structure of negligence is growing due to the problems in the insurance market. Negligence no longer seems to be a simple solution for all the legal problems that had been once done. The tort of negligence7 is a very expansive area of law that covers a huge variety of situations. The Negligence summarizes the omissions or the acts by a defendant that might take a form of a statement or a physical conducts which is summarized in the below mentioned quote as “Negligence is the omission to do something which a reasonable man, guided upon those consideration which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”8 The Wales Courts have developed a general negligence principle that is applied to specific situations to determine the liability among the parties. The major four principles of negligence are Duty of care9, Standard of care, Damage, Causation. The application of general negligence principles is always not straightforward as the courts have been facing will lots of difficulties that are related with the application of the principles to a certain category of persons and damages.
Specifically we will examine some categories of person that have caused problems to the courts while applying negligence principle. Therefore the court has emphasized on many such occasions in which the negligence is an aspect of fault based liabilities. So, there must be some problems on the part of the defendant. By Scots and English law alike the manufacturer of an article of food, medicine or others like that are sold by him to a distributor in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspecting any defect, is under a legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health:- So held by lord Atkin, Lord Thankerton and Lord Macmilan, Lord Buckmaster and Lord Tomlin dissenting10. In the above case the surveyor is suffering from negligence as the surveyor is not allowed to inspect the article that is sold to him by the distributor in all circumstances the surveyor should be given a chance to inspect the commodity that he is buying and as stated in the law it is a legal duty of the surveyor to inspect the article that he is buying.
Hence the above statement states the negligence that is suffered by the surveyor in the above case. In action for damages in respect of an accident against the appellant gas company11 it appeared that the appellants were not the occupiers of the premises on which the accident had occurred and had no contractual relations with the plaintiffs, but they had installed a machine on the said premises, and the jury found that the accident was caused by an explosion resulting from gas emitted, owing to the appellants negligence, through its safety value direct into the closed premises instead of into the open air. Held, that the initial negligence having found against the appellants in respect of an reasonable and easy precaution that are bound to be taken, they were liable unless they could shew that the true cause of the accident was the act of a subsequent conscious violation that involves tampering with the machines by the third parties.
In the above case the surveyor is suffering from negligence that is caused by the insurance company that the surveyor that has suffered from an accident that was caused due to the explosion of the gas cylinder. The company that provided the gas tank denied from any casualties as they said that the surveyor has used the gas cylinder at a place that does not belong to him and as a result they are not responsible for the accident. So, we can easily state that the surveyor suffered from negligence in this case due to the above evidences.