Whose evidence should determine surveyors' negligence?

Structural Survey

ISSN: 0263-080X

Article publication date: 1 June 1998

117

Citation

Murrells, P. (1998), "Whose evidence should determine surveyors' negligence?", Structural Survey, Vol. 16 No. 2. https://doi.org/10.1108/ss.1998.11016bab.001

Publisher

:

Emerald Group Publishing Limited

Copyright © 1998, MCB UP Limited


Whose evidence should determine surveyors' negligence?

Whose evidence should determine surveyors' negligence?

Paul Murrells

A previous article (Structural Survey, 1997, p. 118) discussed the responsibilities of Chartered Surveyors acting as expert witnesses, in the light of a 1997 RICS Practice Statement and Guidance Notes. A recent Court of Appeal Judgment has given helpful guidance as to the evidence of which type of professional would be admissible in determining whether or not a Chartered Surveyor was negligent in a survey of a Devon property.

Sansom and Monaghan v. Metcalf Hambleton & Co (1997) EGCS 185

In July 1992, the defendant firm was instructed to survey and report upon the structural condition of 8 Claypark Terrace, Byter Mill Lane, Stoke Gabriel. Following receipt of such report, the plaintiffs bought the property for £70,000. Subsequently, they commenced proceedings against the surveyors claiming £7,500 being the alleged diminution in value referable to remedial work to a retaining wall at the front of the property. Judgment in favour of the plaintiffs for this amount was awarded in the Exeter County Court in June 1996.

8 Claypark Terrace

The site of the property is steeply sloping, rising from the lane to the front of the house. A retaining wall had been built to support both the vertical cliff created by the excavation of a car parking space along the front boundary with the lane and the infiling behind it. More or less, this produced a level terrace garden behind the wall which was 2.4m high and some 7.5m long. At the east end and at right angles to the wall was a flight of concrete and stone steps rising from the car park to the terrace at the top.

As they rose, the steps passed the eastern end of the retaining wall at a point some three rises before the top step. Accordingly, a small wing wall had been constructed along the side of the top steps, running from the back of the retaining wall to the top step. The wing wall had no structural significance. Its main function, in all probability, was to prevent soil from the terrace spilling onto the upper steps.

Allegations

The plaintiffs alleged that the surveyor did not:

  • draw attention to the existence of a crack in the wing wall;

  • consider the significance of such crack; and

  • advise further investigation which would have led to the conclusion that the retaining wall itself was inadequate for its task and was in need of replacement.

Miss Sansom said she first noticed the crack some months after completing the purchase. However, in addition, account had to be taken of expert evidence. At trial, such evidence was given by engineers for both sides. This agreed that the retaining wall was not adequately designed or constructed. Where the engineers did not agree was whether in 1992 there would have been any indication that the retaining wall was inadequately designed or constructed and whether, if the surveyor had seen the crack, he should have recommended further investigation by a structural engineer.

The trial judge found for the plaintiffs on all points. It is of considerable significance that from the transcript of the trial evidence produced to the Court of Appeal it was noted that the plaintiffs expert engineer was asked if he carried out structural surveys for house buyers. He replied as follows:

Not structural surveys in the same way that chartered surveyors carry out structural surveys.

When asked by the judge if he was the sort of chap called in when there was a structural problem, the engineer replied:

Correct. When we are called in ­ we do a structural engineers report.

Standard of care and skill

Judgment in the Court of Appeal was given by Lady Justice Butler-Sloss. She quoted the following as being a helpful summary:

"In common with other professional persons and in the absence of an express term to the contrary, the standard required of a surveyor is that of the ordinary skilled man exercising the same skill as himself. He is variously described in the cases as the "reasonably skilled", "competent", "prudent" or"average" surveyor (Jackson & Powell, 1992).

What expert evidence is admissible?

By section 3 of the Civil Evidence Act 1972, the opinion of a witness in any civil proceedings on any relevant matter which he is qualified to give expert evidence shall be admissible in evidence. Whether a witness has the requisite expertise to give an opinion on any relevant matter is one going to admissibility. The test is not merely the weight of such evidence.

Case Law

In her judgment Lady Justice Butler-Sloss quoted from the Court of Appeal decision in Investors inIndustry Ltd v. South Bedfordshire DC (1986) 1 All ER 787. At pages 808-9, Lord Justice Slade said the following:

Expert evidence from suitably qualified persons is, in our Judgment, admissible to show what competent architects in the position of Hamiltons could reasonably have been expected to know and do in their position at the relevant time. Indeed, in our Judgment, there could be no question of the court condemning them for professional negligence ..... unless there were appropriate expert evidence to support the allegation that their conduct fell below the standard which might reasonably be expected of an ordinarily competent architect.

Also cited was:

Whalley v. Roberts & Roberts (1990) 1 EGLR 164

This concerned an alleged negligent valuation for mortgage purposes. Justice Auld said the following: "In my view, it is only the evidence of the surveyors that may be of value on this issue. (The civil engineer and architect), however competent they may be in their respective professions, cannot speak with authority on what is to be expected of the ordinarily competent surveyor."

The writer of this article takes particular pleasure at this section of the Sansom Judgment in view of a discussion on the role of experts in a book entitled "Law of Surveys and Valuations" of which he is co-author. (Murdoch & Murrells, 1995, p. 81)

Judgment

It was clear to Lady Justice Butler-Sloss from both lines of authority to which she had been referred, that a court should be slow to find a professionally qualified person guilty of a breach of duty of care and skill. This was without evidence from those within the same profession as to the standard expected ­ both on the facts of the case and the failure of the professionally qualified person to measure up to that standard.

There was insufficient evidence before the court in the Sansom case to make a finding of professional negligence against the surveyor. There was room for differing views on the relevance of the crack and the step as they might have been in 1992. Applying Section 3 of the Civil Evidence Act 1972, to which reference has been made already in this article, the evidence of the engineer called upon behalf of the plaintiffs was inadmissible. In the absence of evidence from another chartered surveyor, the trial judge had been wrong in making a finding of negligence against the chartered surveyor.

Conclusion

It is very much a case of "horses for courses" in ensuring the correct evidence is available in support of a court case. Miss Sansom and Mr Monaghan may have found themselves facing expenditure on their dream home which they had not budgeted for at the time of purchase. It is a sad reality that purchasers in such circumstances are advised to pursue claims against their professional advisers ­ no doubt, spurred on by the knowledge that professional indemnity insurance should be in place. It must be comforting to all professionals that the courts will be slow to make a finding of negligence against any professional unless there is clear evidence that a reasonably competent member of that profession would have advised differently ­ given the same circumstances at the time of instruction.

Structural Survey (1997), Vol. 16 No. 3, p. 118.

References

Jackson and Powell (1992), Professional Negligence, 3rd edition.

Murdoch and Murrells (1995), Estates Gazette, p. 81.

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