Understanding why you could be sued for negligence

Surveyors are recognised as professional people, clients pay for our services with the expectation that we will provide a high quality service and give good appropriate advice, we owe them a ‘duty of care’.  However, in some instances where we do not meet this expectation our clients can suffer some financial loss or ‘damage’, they may then seek to compensate any losses through legal channels and ultimately the courts.

It is important that all professional people should have a good understanding of the law; surveyors are no exception and especially those areas of law which are relevant to their own particular field of expertise.  There is however some areas of law that are better know and understood than others. The law in general terms relates to the manner, conduct, attention to detail and professionalism in which we undertake our day to day professional duties. There are ethical standards and codes of conduct to follow which help to mitigate any potential claims against you. These ethical standards provide a level of protection however they will not make a professional immune from acting and becoming negligent if there is a considerable failure in the future of care.

A particular area of law where surveyors and valuers can find themselves brought into question is the Tort of Negligence. The principles of negligence are relevant to all professional roles in its definition.

What is negligence?

“a subset of the general rules on negligence to cover the situation in which the defendant has represented him or herself as having more than average skills and abilities".

In order to ascertain if a person has acted in a negligent manner the law will consider if a competent professional would have acted in the same way with the same information and set of circumstance. If an experienced person taking reasonable care would not have made the same mistake you may be liable in a negligence claim case. This is always something to consider when carrying out your day to day work. It is important to act professionally, record, audit and monitor your approach to ensure you comply with surveying and valuation standards so you have a defendable position should you ever find yourself in a negligence case.

To prove negligence, a solicitor must be able to show:

1. That you owed your client a duty of care, this could be potentially proved using the contract between you. It is therefore important to always have a signed contract setting out exactly the duties you are to perform. Or it could be that the relationship you have with your client meant you should be careful in your work because you are aware of the potential losses if you made a mistake.
2. Your duty of care must have been breached by poor work or advice. That duty must have been breached by poor advice or work.  The test used by lawyers to evidence this is usually is if you did a poor job compared to that of a competent professional in the same position, expert witnesses are often called on to decide this.
3. Finally, your breach must have caused a loss to your client or their business, this can be a financial loss or a physical asset.

There are two main stages to a negligence claim:

1. First liability has to be established; this is simply where it is established who is responsible for the situation that has occurred. This is done by looking at the contract and relationship between you and your client, establishing the scope of what you were contacted to do, this is to assess whether it amounts to "a duty of care", and whether that has been breached by your actions.

There will be some instances where there could be more than one person responsible for the loss.

1. It is therefore important to establish what damage and loss has been caused directly by the breach. It is important to find out the true cause of the loss, for example are external factors playing a role in the loss, the loss could be a direct results of a fall in the commercial or residential property marker, a property matter or because of the alleged negligence act.  

It is therefore paramount you follow your professional obligations and this includes all RICS Standards, Rules, Guidance and best practice.