Conventional damages were insufficient where surveyor failed in their duty

A buyer who purchases a newly built home will expect to receive a warranty, backed by insurance, confirming that the property has been properly constructed. Alternatively, the seller may offer a consultant’s certificate confirming that the construction work was supervised and that the property was constructed to a satisfactory standard. Hart v Large [2021] EWCA Civ 24 concerned a property in a dramatic coastal location in Devon, which was reconstructed and extended and then sold for £1.2m. The buyers commissioned a Home Buyer’s Report before proceeding, which raised questions about drainage, but failed to identify more serious problems that resulted, among other things, in extensive water ingress. Unfortunately for the buyers, the defects rendered parts of the house unusable for lengthy periods, causing the buyers to issue proceedings against their surveyor, and others. The High Court ruled that the surveyor was negligent. He had failed to spot general warning signs of poor workmanship. He did not see visible damp-proofing in places where he should have expected to see it. He had wrongly assumed, without evidence, that there was damp-proofing because the rebuilding works had only recently been completed – and should have advised that further investigations were required. Furthermore, had he drawn attention to protections – such as a consultant’s certificate – available to buyers, it would have emerged that no such certificate was available and the buyers would have withdrawn from the transaction. Consequently, they were entitled to damages totalling £374,000, to add to the sum of £376,000 already received from the other parties to the case, to pay for the property to be rebuilt, as well as £15,000 for distress and inconvenience. The Court of Appeal granted the surveyor permission to appeal on the question of the loss for which he was liable. The surveyor argued that the judge had adopted a radically altered approach to damages. But the Court of Appeal dismissed the appeal. The proper measure of damages is usually limited to the difference between the value of the property as it was represented to be and its value in its true condition. But the failure to advise about the need for a consultant’s certificate made this case very different. The surveyor had failed to advise on the absence of something that was fundamental to the buyers’ decision as to whether they should proceed with, or abandon, the transaction. In BPE Solicitors v Hughes-Holland [2017] UKSC 21; [2017] PLSCS 70 the Supreme Court distinguished between a duty to provide information to enable someone to decide on a course of action and a duty to advise someone what to do. If the duty is to advise whether or not a course of action should be taken, a professional who is negligent will be responsible for all the foreseeable loss that is a consequence of that course of action having been taken. But if his duty is only to supply information, the professional will be responsible only for the foreseeable consequences of that information being wrong. This case was more akin to an “advice” case than an information case, and the damages awarded were attributable to risks against which the surveyor had had a duty to safeguard the buyers. If the surveyor believed that the losses for which he had been found liable were too great when compared with the damages paid by the buyers’ solicitors, his recourse lay in the ongoing contribution proceedings between him and his co-defendants.   Allyson Colby, property law consultant