Action against surveyor for breach of contract or negligence — Instructions from clients were to carry out something more than a bare valuation but less than a full structural survey — Defendant surveyor had been instructed to make a valuation report for a building society for the purpose of a mortgage on a house, but was also given independent instructions by the intending purchasers, the plaintiffs, to make a survey as above mentioned — Judge’s interpretation of defendant’s instructions was to provide a report on the general state of the property, to draw attention to those matters which might give rise to suspicion, such as springing floors or a musty smell which might require further investigation, and to report any matters which might cause the plaintiffs to withdraw or to bargain for a lower price — Report drew attention to one or two minor defects, but supported a purchase at the asking price of £14,900 — After some four years the plaintiffs complained of the condition of the property and brought the present action — Although the plaintiffs’ claim particularised 14 alleged defects, the judge found that the defendant was liable only for failure to report on rot in window frames and defects in ceiling joists and door joinery — Damages assessed at £500, not justifying a High Court action and attracting costs on county court scale only
This was an
action by Mr and Mrs Fisher against Victor Rodney Knowles BSc FRICS, a
chartered surveyor, alleging negligence or breach of duty in a report, made on
the plaintiffs’ instructions, in respect of a house at 6 Hawkwell Close,
Hockley, Essex, which the plaintiffs were proposing to purchase and
subsequently did purchase.
Richard
Greening (instructed by Kingsford, Dorman, agents for Drysdales & Janes, of
Southend-on-Sea) appeared on behalf of the plaintiffs; H James Latter
(instructed by Kenneth Wood & Co) represented the defendant.
Giving
judgment, SIR DOUGLAS FRANK said: In 1976 the plaintiffs were minded to buy a
house at 6 Hawkwell Close, Hockley, in Essex. The asking or negotiated price
for the house was £14,900. The Cheltenham and Gloucester Building Society had
been asked to make an advance of £12,500 towards the purchase price; they
instructed the defendant to make a report and valuation for the mortgage and he
did that.
The plaintiffs
wanted a survey and they found out who was carrying out the survey for the
building society and instructed the same surveyor, namely the defendant. The
defendant carried out an inspection and, following that inspection, he made his
report to the building society valuing the property at £14,900 and also made a
report, which is entitled ‘Valuation’, which he sent to Mr Fisher.
There has been
some debate as to the nature of the terms of employment of the defendant and how
he was instructed, but at the end of the day I do not think that anything turns
on those questions, because it seems that what the defendant was being
instructed to do was something more than the bare valuation which he gave to
the building society and something less than a full structural survey. Indeed,
what he did was to produce a report which was more than a bare valuation and
less than a structural survey. I think what he was by implication being asked
to do, and what he in fact did, was to provide a report on the general state of
the property and to draw attention to those matters which might give rise to
suspicion, as, for example, springing floors or a musty smell, which would
require further investigation in the nature of a structural survey. I think it
was also implicit in his terms of employment that he should draw to the
plaintiffs’ attention any matters which might cause the plaintiffs either to
wish to withdraw from the sale or to bargain for a lower price. I think that
impliedly that is how Mr Knowles approached the matter. He is a chartered
surveyor of high qualification and of many years’ experience, including
valuable experience in the Valuation Office of the Inland Revenue, which is
notorious for the care that it takes in carrying out inspections.
That report
was submitted on April 5 1976 and one or two defects were referred to. For
example, the eaves gutters were rusted and corroded in places, but in general
Mr Knowles expressed the view that he saw no reason to assume that the property
would not prove to be a satisfactory dwelling for many years to come, nor any
reason why the plaintiffs should not proceed with the purchase at the price at
which the property was offered, namely, £14,900, which figure they considered
to be realistic.
The plaintiffs
bought the property and went to live in it. They say that there were a number
of defects which the defendant should have noticed and which he should have
drawn to the plaintiffs’ attention. On May 9 1980, that is some four years
later, they made their complaint against the defendant. They subsequently
brought these proceedings for breach of contract and/or negligence.
Before I turn
to the allegations made, it is proper that I should emphasise that the burden
is on the plaintiffs to prove that on the balance of probabilities the defects
are defects to which the defendant should have drawn attention when the
inspection was carried out. That burden seems to be even more heavy, having
regard to the fact that there was a time lapse of four years between the
inspection and the first making of the allegations, and also having regard to
the fact that some of the evidence — for example, the window frames — had been
destroyed.
The word
‘defects’ is a word having a number of connotations. Defects may be something
which is inherent in the type and age of a building.
For example,
an Elizabethan cottage is likely to have the defect of having low ceilings, a
defect both in the ordinary sense and in the statutory sense. To some people,
though, that would be considered to be an enhancement. There are defects of
some kind in every home. There are creaking floorboards, gaps between the
wainscot and the floor. There are cracks in ceilings. One would be very lucky
indeed to buy even a new house, let alone a 25-year-old house, as this one was,
without finding some cracks in the ceiling. It seems that in approaching this
matter in the instant case I should have regard to those defects which were of
such a nature as a prudent person would have put right and which would have been
apparent to the defendant exercising the ordinary skill of an ordinary
competent chartered surveyor, and taking into account the type and age of the
property. The defects are particularised and there are 14 in number. Some of
them have been made good, but others still have not been made good.
It seems that
both from the defendant’s own qualification, knowledge, and experience, and the
way in which he gave his evidence, he is a man who does exercise the skill of a
competent chartered surveyor. It is apparent from his report that he made a
fairly full survey of this property, but of course even the most competent
professional man can make mistakes. Did he in this case?
The most
important defect relates to the window frames and timbers, which were taken out
and renewed with a different style of window at a cost, having allowed for a
different type of window, of £1,000. The defendant says that it was his
practice, which is the common practice of any surveyor, to go round and test
window frames, and indeed all timbers, with a penknife. Although his memory
cannot go back for him to say, ‘Yes, I remember doing it in this case’, he
says, ‘That is what my practice is and I have no doubt that I would have done
that as a matter of course.’ On the
other hand, the plaintiff says, ‘Within a short time of moving in I found that
I could plunge a screwdriver into the window frames and in not one but in many
places’. His wife gave corroborative evidence of that. That is something which
occurred soon after the purchase and the window frames were renewed, although
not until 1979 because the plaintiff says that he had no money to do it.
It seems,
having regard to the plaintiff’s own evidence, and he struck me as a witness of
truth, to Mrs Fisher’s corroborative evidence, and, the fact that the windows
were renewed, that on the balance of probabilities at the time of inspection
there was rot in these window frames which should have been noticed by the
defendant, but which for some reason was not noticed.
I now turn to
the other items and deal with one in particular relating to the ceiling joists
under the bathroom floor. I think that, seeing that we, it should have been
fairly obvious to the defendant that work had been carried out not only in
contravention of the building regulations but by some inexpert hand and that he
should have been put on an inquiry and investigated further.
Apart from
those two matters, however, I am not satisfied that there was any evidence of
damp in the roof space at the time of the inspection by the defendant. I am not
satisfied that any sagging or bowing in the floor was of such a kind as to be
any reason for affecting the valuation or that it was such that one might not
expect to find in a house of this kind at this price of that age. I do not
think that it was incumbent upon the defendant to report in such detail as is
envisaged by these particulars.
I do not think
that in general these were matters that affected the value, or in some cases,
as I say, I am not satisfied that they existed. So I am left with the two
matters, the joists and the window and door joinery.
I am satisfied
that the correct approach in assessing damages is to take the difference in
value. There may be exceptions to that general rule, but this case is not one.
It seems that it is wholly appropriate in the instant case because window
frames and external doors notoriously require periodic maintenance and painting
and reputtying and so on. The plaintiffs had the benefit of these frames, not
only of having new for old and therefore a longer life, but also in postponing
the costs of maintenance and, incidentally, of being able to take advantage of
renewal by putting in a type of window frame which presumably made the property
more attractive. Doing the best I can, I have come to the conclusion that the
plaintiffs claim succeeds but to the extent that I assess damages at £500.
Judgment was
given in favour of the plaintiffs for £500, with three years’ interest at 12
per cent and with costs on old County Court Scale 3. An order was made for the
legal aid taxation of the plaintiffs’ costs.
