Liability of Negligence
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...
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