Surveyor – Advice – Duty of care – Claimants wishing to purchase converted office premises in historic building – Claimants engaging defendant firm of surveyors to carry out survey of premises – Defendant reporting that premises able to perform loadbearing function – Claimants seeing cracks in piers of building following purchase – Premises requiring substantial repairs – Claimants seeking damages against defendant alleging negligence – whether defendant acting in breach of duty to exercise reasonable skill and care – Whether defendant negligent in failing to recognise risk of compression failure in piers – Claim dismissed
The claimants were institutional purchasers of historical mill buildings in Leeds which had been converted into offices. The second claimant had set up a company to fund the purchase the property (the fourth claimant). The first claimant had entered into the contract to purchase it on behalf of the fourth claimant as its general partner and the property was eventually transferred into the name of the second claimant. The defendant partnership was a firm of surveyors and engineers engaged by the third claimant, on behalf of the fourth claimant, to survey the buildings prior to purchase.
An employee of the defendant carried out a building survey and reported that some cracking had taken place in piers at ground floor level but that the main body of the brickwork was able to perform its loadbearing function. In June 2003, contracts were exchanged for purchase of the property. In 2005, it was noticed that the cracks had increased in width and substantial repairs had to be carried out bring the building up to full office standards.
The claimants brought proceedings for damages contending that the defendant had been professionally negligent in failing to recognise the risk of compression failure in the piers. They also argued that the third claimant, as property development manager, had employed the defendant, in effect acting as agent for the fourth claimant. An implied term was pleaded that the defendant would act with the skill and care to be expected of a firm of reasonably competent chartered building surveyors, project managers and civil and structural engineers. A duty of care in tort was also pleaded as being owed by the defendant to the third and fourth claimants. A further question arose whether the defendant owed any duty of care to the first and second claimants.
Held: The claim was dismissed.
(1) There was no doubt that a duty of care was owed to the fourth claimant. It was clear from all the formal documentation that the fourth claimant was the prime mover and investor in the acquisition. As a registered limited partnership, the fourth claimant legally functioned as a partnership rather than having some separate corporate personality. By its participation in the litigation, in effect all the partners were parties.
The third claimant was the property development manager appointed to provide services which included instructing surveyors to carry out a survey of the property in question. Thus the third claimant clearly had authority under its formal appointment to engage the defendant to do exactly what it had been engaged to do. It was acting in effect as an agent for and on behalf of the fourth claimant when it approached and initially retained the defendant. Although the evidence was not wholly clear, on the balance of probabilities, there was sufficient intimation to the defendant before its retainer came into effect that the third claimant was acting in that capacity. Thus the contract of retainer was between the defendant and the fourth claimant. A duty of care both contractual and tortious was owed to it by the defendant and in effect to each of the partners albeit only in their capacity as partners; such a duty of care was thus owed to first claimant. However, no duty was owed to the third claimant because it was simply an agent.
Furthermore, no contractual or tortious duty was owed to the second claimant because it was never mutually anticipated by the defendant and the fourth claimant that such a duty would be owed to a company, whose existence was not known of at any material time by the defendant and whose involvement only came about many months after the defendant’s engagement and by reason of some unexplained corporate decision that it should become a part owner of the site.
(2) It was axiomatic in professional negligence cases that the relevant professional was required to exercise the skill and care to be expected of an ordinary competent professional in that field. Such a professional would be liable for damage caused by his or her advice if it was such as no member of the profession who was reasonably well-informed and competent would have given. Further, the tenor and content of the advice could often legitimately be pitched at a level which was consonant with the type of client with whom the professional was dealing. Thus, to a highly experienced commercial client, a professional might not need to spell out everything which might need to be spelt out to a clearly inexperienced client. The extent to which that was applicable would be illuminated by the expert evidence, as well as by the factual evidence as to how the advice was read and understood. Furthermore, the standard of care to be expected of a professional man had to be based on the events as they occurred, in prospect and not in retrospect. Merely because a professional person, including a surveyor, got something wrong did not mean that he or she was negligent, albeit to found a case in professional negligence it would almost invariably be necessary to prove that there was a causative error or omission: Duchess of Argyll v Beuselinck [1972] 2 Lloyd’s Rep 172 and Saif Ali v Sidney Mitchell & Co [1989] AC 198 considered.
(3) On the evidence, there was no doubt that the defendant could not be criticised as falling below the requisite standard of care in this case. On the balance of probabilities, the defendant had exercised all the reasonable care and skill to be expected of surveyors retained to do what the defendant had been retained for. Overall, no breach of contractual or tortious duty had been established; nor, on the evidence had the defendant failed to exercise the reasonable care and skill to be expected of surveyors and engineers in connection with their inspections, advice and reporting in relation to the property.
Tom Leech QC and Adam Smith (instructed by Eversheds) appeared for the claimants; Anneliese Day QC and Michael Ryan (instructed by Weightmans LLP) appeared for the defendant.
Eileen O’Grady, barrister
Igloo Regeneration (General Partner) Ltd and others v Powell Williams Partnership
Surveyor – Advice – Duty of care – Claimants wishing to purchase converted office premises in historic building – Claimants engaging defendant firm of surveyors to carry out survey of premises – Defendant reporting that premises able to perform loadbearing function – Claimants seeing cracks in piers of building following purchase – Premises requiring substantial repairs – Claimants seeking damages against defendant alleging negligence – whether defendant acting in breach of duty to exercise reasonable skill and care – Whether defendant negligent in failing to recognise risk of compression failure in piers – Claim dismissed The claimants were institutional purchasers of historical mill buildings in Leeds which had been converted into offices. The second claimant had set up a company to fund the purchase the property (the fourth claimant). The first claimant had entered into the contract to purchase it on behalf of the fourth claimant as its general partner and the property was eventually transferred into the name of the second claimant. The defendant partnership was a firm of surveyors and engineers engaged by the third claimant, on behalf of the fourth claimant, to survey the buildings prior to purchase. An employee of the defendant carried out a building survey and reported that some cracking had taken place in piers at ground floor level but that the main body of the brickwork was able to perform its loadbearing function. In June 2003, contracts were exchanged for purchase of the property. In 2005, it was noticed that the cracks had increased in width and substantial repairs had to be carried out bring the building up to full office standards. The claimants brought proceedings for damages contending that the defendant had been professionally negligent in failing to recognise the risk of compression failure in the piers. They also argued that the third claimant, as property development manager, had employed the defendant, in effect acting as agent for the fourth claimant. An implied term was pleaded that the defendant would act with the skill and care to be expected of a firm of reasonably competent chartered building surveyors, project managers and civil and structural engineers. A duty of care in tort was also pleaded as being owed by the defendant to the third and fourth claimants. A further question arose whether the defendant owed any duty of care to the first and second claimants. Held: The claim was dismissed. (1) There was no doubt that a duty of care was owed to the fourth claimant. It was clear from all the formal documentation that the fourth claimant was the prime mover and investor in the acquisition. As a registered limited partnership, the fourth claimant legally functioned as a partnership rather than having some separate corporate personality. By its participation in the litigation, in effect all the partners were parties. The third claimant was the property development manager appointed to provide services which included instructing surveyors to carry out a survey of the property in question. Thus the third claimant clearly had authority under its formal appointment to engage the defendant to do exactly what it had been engaged to do. It was acting in effect as an agent for and on behalf of the fourth claimant when it approached and initially retained the defendant. Although the evidence was not wholly clear, on the balance of probabilities, there was sufficient intimation to the defendant before its retainer came into effect that the third claimant was acting in that capacity. Thus the contract of retainer was between the defendant and the fourth claimant. A duty of care both contractual and tortious was owed to it by the defendant and in effect to each of the partners albeit only in their capacity as partners; such a duty of care was thus owed to first claimant. However, no duty was owed to the third claimant because it was simply an agent. Furthermore, no contractual or tortious duty was owed to the second claimant because it was never mutually anticipated by the defendant and the fourth claimant that such a duty would be owed to a company, whose existence was not known of at any material time by the defendant and whose involvement only came about many months after the defendant’s engagement and by reason of some unexplained corporate decision that it should become a part owner of the site.(2) It was axiomatic in professional negligence cases that the relevant professional was required to exercise the skill and care to be expected of an ordinary competent professional in that field. Such a professional would be liable for damage caused by his or her advice if it was such as no member of the profession who was reasonably well-informed and competent would have given. Further, the tenor and content of the advice could often legitimately be pitched at a level which was consonant with the type of client with whom the professional was dealing. Thus, to a highly experienced commercial client, a professional might not need to spell out everything which might need to be spelt out to a clearly inexperienced client. The extent to which that was applicable would be illuminated by the expert evidence, as well as by the factual evidence as to how the advice was read and understood. Furthermore, the standard of care to be expected of a professional man had to be based on the events as they occurred, in prospect and not in retrospect. Merely because a professional person, including a surveyor, got something wrong did not mean that he or she was negligent, albeit to found a case in professional negligence it would almost invariably be necessary to prove that there was a causative error or omission: Duchess of Argyll v Beuselinck [1972] 2 Lloyd’s Rep 172 and Saif Ali v Sidney Mitchell & Co [1989] AC 198 considered.(3) On the evidence, there was no doubt that the defendant could not be criticised as falling below the requisite standard of care in this case. On the balance of probabilities, the defendant had exercised all the reasonable care and skill to be expected of surveyors retained to do what the defendant had been retained for. Overall, no breach of contractual or tortious duty had been established; nor, on the evidence had the defendant failed to exercise the reasonable care and skill to be expected of surveyors and engineers in connection with their inspections, advice and reporting in relation to the property.Tom Leech QC and Adam Smith (instructed by Eversheds) appeared for the claimants; Anneliese Day QC and Michael Ryan (instructed by Weightmans LLP) appeared for the defendant.Eileen O’Grady, barrister
