Party Wall Surveyor Bruce Spenser MSc MCIOB

Party Wall Surveyor Negligence

Negligence is failing to meet the degree of prudence and caution required of an individual who is under a duty of care (the obvious comparable benchmark is a surveyor registered within the Faculty of Architecture and Surveying of the CIOB or other Chartered Institutes)

NEGLIGENCE – EVOLVING CHRONOLOGY

HEDLEY BYRNE v HELLER & PARTNERS (1964)

 

In tort law, a duty of care is a legal obligation owed by for example a professional to a client similar to a Doctor and patient.  Donaghue (or MAlister v Stevenson 1932) founded this modern tort of negligence.

 

This can be encapsulated utilising the principals establishes in  Hedley Byrne v. Heller & Partners Ltd. [1963] 2 All E.R. 575:

 

  • That the misrepresentor owes a duty to take reasonable care in when making representation within a special relationship
  • That the misrepresentor is in breach of this duty
  • Damage results from this breach

 

Hedley Byrnes bankers  (Heller) phoned another bank and enquired re the financial state and creditworthyness of a company (Easipower)  Hedly B was about to enter into business with.  The bank vouched for them but stated, : “for your private use and without responsibility on the part of the bank and its officials.” Hedley Burns commenced business but the company went bankrupt.  Hedley sued Heller for negligence.

 

The court found that the relationship between the parties was “sufficiently proximate” as to create a duty of care. It was reasonable for them to have known that the information that they had given would likely have been relied upon for entering into a contract of some sort. This would give rise, the court said, to a “special relationship”, in which the defendant would have to take sufficient care in giving advice to avoid negligence liability. However, on the facts, the disclaimer was found to be sufficient enough to discharge any duty created by Heller’s actions. There were no orders for damages.

Merrett v Babb – 15 Feb 2001 

Mr Babb was employed as a surveyor by a firm.  He carried out a survey and valuation on instruction from a building society (Bradford and B).  He negligently failed to advise/see cracks which were a result of foundation failure.  He sought to exclude personal liability in the way he filled in B&Bs required forms. 

The plaintiff, which was a Ms Merrett purchased the house on the strength of the report and when the cracks appeared decided to seek damages.

 By this time Mr Babb’s employer had gone out of business and their bankruptcy trustee had cancelled their professional indemnity.

 

 Amongst a number of questions the Courts had to decide in this case was did Mr Babb owe Ms Merrett a duty of care, if so had he breached that duty of care and did the plaintiff suffer damage.

 

 To cut a long story short, before I resume the longer story, it was found that Babb did owe a duty of care and was liable – and this poor chap had no insurance.  It is worth noting that RICS has subsequent to Merrett v Babb has done the following –

 

 http://www.rics.org/Services/Library/merrettvbabb.html

Merrett v Babb was a landmark case for chartered surveyors and other professionals in England and Wales. 

It established the principle that where an employer’s professional indemnity insurance cover was withdrawn due to bankruptcy, the employee was personally liable for any damages. 

The decision led to the creation of the Members Support Service Levy (MSSL) in 2002 to assist members in limiting their liability.

This hot topic brings together articles relating to the case. Photocopies of the articles may be purchase from the RICS Library. A full list of hot topics is also available.

The judgement of Merrett v Babb is an interesting read as it an insight into the chronology of the evolving tort of neglect – this evolved from the tort of trespass during the industrial revolution when there was a marked move from the land to the factory.  There appears to have been a confusing time following Anns v Merton BC which has been seemingly rectified by Caparo v Dickman 

1856

Blyth v Birmingham wworks

Negligence is the failure to do what a reasonable person would have done (or would not have done)

1883

Heaven v Pender

Duty of care to employee (provide adequate scaffolding)

1932

Donoghue v Stevenson (L Aitken)

 

Proximity = neighbour

Foreseeability = contemplation

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour: and the lawyers question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then is my neighbour? The answer seems to be – persons who are so directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question

1943

Bourhill v Young

Proximity

1945

Law Reform

Contributory negligence

1961

Wagon Mound

Foreseeability

1963

Hedley Byrne v Heller

Principle of economic loss, liability for negligent statements and acts established

·         Special skill

·         Reliance on advice

·         Knowledge of transaction

Make sure you have full professional indemnity before you open your mouth!!!!!!

1970

Home Office v Dorset Yacht

Forseeability and proximity

1978

Anns v Merton BC

Forseeability and proximity unless legal or policy reason existed to do away with Doghue Stevenson

1983

Junior Books v Veitchi

Economic loss is allowed –  No contract and pursued by way of tort

1988

D&F Estates v Church Coms

Junior Books v Veitchi is unique??

1985 – 1989

Cases various

Anns v Merton questioned and attacked

1990

Caparo v Dickman

 

Incremental approach of Brennan J

Pure economic loss –

·         Foreseeable

·         Proximity – laid down

·         Just and reasonable

2004

Lennon v Commissioner of police

Duty of care extended to managers (in this case HR) who give advice – in a work situation.

 Cases quoted in Merret v Babb judgement:

 

 Smith v. Eric S. Bush and Harris v. Wyre Forest District Council [1990]

Yianni v. Edwin Evans & Sons [1982] QB 438

Candler v. Crane, Christmas & Co [1951] 2 KB 164;

Anns v. Merton London Borough Council [1978] AC 728;

Hedley Byrne & Co v. Heller & Partners [1964] AC 465

Harris v. Wyre Forest District Council,

Housing and Local Government v. Sharp [1970] 2 QB 223

Curran v. Northern Ireland Co-ownership Housing Association (1986) 8 NIJB 1

 

 

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