Negligence — Structural survey — Chartered surveyor — Whether court entitled to find negligence by chartered surveyor on evidence of structural engineer — Whether evidence of structural engineer admissible
In 1992 the
appellant chartered surveyors provided the respondents with a report, prepared
by a partner, B, upon the structural condition of a property. Following the
report, the respondents purchased the property for £70,000. In proceedings by
the respondents in the county court, in which they contended that B did not
draw attention to a crack in a wall, the county court judge rejected the
evidence of the appellants’ expert, a chartered surveyor, and preferred that of
the respondents’ expert, a structural engineer, and found that B was negligent
in not noticing the crack. He awarded £7,500 damages. The appellants appealed.
professionally qualified man guilty of a breach of skill and care towards a client
without evidence from those within the same profession as to the standard
expected on the facts of the case and the failure of the professionally
qualified man to measure up to that standard. The present case was not an
obvious case in which there was not room for two views about the crack. The
evidence of the structural engineer was not expert evidence admissible in
accordance with section 3 of the Civil Evidence Act 1972 on the issue of
negligence. The other grounds of appeal, relating, inter alia, to the
evidence about the crack, were dismissed.
The following
cases are referred to in this report.
Hunter v Hanley [1955] SLT 213
Investors
in Industry Commercial Properties Ltd v South
Bedfordshire District Council [1986] 1 QB 1034; [1986] 2 WLR 937; [1986] 1
All ER 787; [1986] 1 EGLR 252, CA
Whalley v Roberts & Roberts [1990] 1 EGLR 164; [1990] 06 EG 104
Worboys
v Acme Investments Ltd (1969) 4 BLR 133
This was an
appeal by the defendants, Metcalfe Hambleton & Co, against a decision of
Judge Overend in Exeter County Court, in proceedings by the plaintiffs, Denise
Sansom and John Monaghan, against the defendants for damages.
Grahame Aldous
(instructed by Cameron McKenna) appeared for the appellants; Martin Edmunds
(instructed by Stones, of Exeter) represented the respondents.
Giving
judgment, BUTLER-SLOSS LJ said: On June 16 1996 in Exeter County Court
Judge Overend gave judgment in favour of the plaintiffs, Miss Sansom and Mr
Monaghan (the owners), against the defendants, Metcalfe Hambleton & Co,
chartered surveyors, for the sum of £7,500 and costs on their claim for damages
for negligence by a partner in the defendant firm, Mr Roger Whitaker Brown arics. He was instructed to survey and
report upon the structural condition of 8 Claypark Terrace, Byter Mill Lane,
Devon, in July 1992, which the owners were contemplating buying, and following
his report did buy for £70,000. The claim for £7,500 was based on alleged
diminution in value referable to the need to do works to a retaining wall at
the front of the property, and no point arises on this appeal as to the amount
of the award. The appellant surveyors’ contention is that the judge should have
dismissed the claim.
The site of no
8 is steeply sloping, rising from the lane to the front of the house. The
retaining wall had been built in about 1988 to support both the vertical cliff
created by the excavation of a car parking space along the front boundary with
the lane and the infilling behind it, which produced a more or less level
terrace garden behind the wall. It was 2.4m high and some 7.5m long. At its
east end and at right angles to it was a flight of concrete and stone steps
rising from the car park to the terrace at the top of the wall. However, the
top of the steps was at a point a little way beyond the back of the retaining
wall. Put another way, as they rose the steps passed the eastern end of the
retaining wall at a point some three risers before the top step. The result of
this was that there had been constructed a small wing wall along the side of the
top steps, running from the back of the retaining wall to the top step. This
wing wall was not an integral part of the retaining wall and had no structural
significance. Its main function was probably to prevent soil from the terrace
spilling on to the upper steps.
The owners’
claim was based on their contention that Mr Brown did not draw attention to the
existence of a crack in the wing wall; did not consider its significance; and
did not advise further investigation which, had it been pursued, would, it was
said, have led to the conclusion that the retaining wall itself was inadequate
for its task and needed to be replaced. Among the issues before the judge were
the following:
(1) Was the
crack there to be seen in July 1992 when Mr Brown made his inspection? This was
a question of fact, depending on the owners’ evidence as to when they first saw
the crack (the judge found that Miss Sansom first noticed it ‘some months after
completion’) and the expert evidence, and the judge resolved it in favour of
the owners.
(2) If Mr
Brown had seen the crack, should he have regarded it as potentially significant
and, in particular, was he negligent in not advising that advice should be
sought from a structural engineer?
(3) Was the
crack of any structural significance, ie was it linked to failure of the
retaining wall itself (the owners’ case) or merely to the deficiencies in
construction of the wing wall?
The case is in
a sense complicated by the fact that both the engineers who gave evidence (Mr
Gannon for the owners and Mr Stow for the surveyors) accepted that the
investigations which were carried out following discovery of the crack
demonstrated that the retaining wall was not adequately designed or
constructed. There were some differences between them as to the details of the
defects, but the most important disagreement was about whether there was in
1992 anything to indicate that the retaining wall was inadequately
designed or
crack, should have undertaken or procured a structural engineer to undertake
further investigation which would have had that result.
The judge’s
further findings were as follows:
(i) The
cracking in the return wall ‘was likely to have been caused in part at least,
by failure of the retaining wall, probably by overturning [ie rotating on its
foundations as a result of pressure from behind] rather than sliding [ie moving
bodily outwards on its foundation baseblock]’. In this regard he preferred Mr
Gannon’s to Mr Stow’s evidence wherever they were in conflict.
(ii) Mr Brown
was negligent in not noticing the crack and in not calling in a structural
engineer. In reaching the latter conclusion the judge rejected the evidence of
the defendants’ expert, Mr Timothy Edward Dickinson frics fsva — a chartered surveyor — preferring that of Mr
Gannon — a structural engineer.
(iii) A
structural engineer would have advised that the retaining wall was inadequately
designed and that the cracking was causatively linked to failure of the
retaining wall.
There are six
grounds of appeal. The first is that the judge erred in law in relying on the
evidence of a structural engineer as to what a reasonably competent chartered
surveyor should have done. The only material evidence on this issue, other than
that given by Mr Brown, was that of Mr Dickinson, since he was the only expert
competent to express an opinion about it and his view was favourable to the
appellant surveyors.
Mr Grahame
Aldous, on behalf of the appellant surveyors, submitted that the failure of the
owners to call a chartered surveyor to give evidence of the standard of skill
and care to be expected of a surveyor asked to survey and report on the
structural condition of the house, and whether Mr Brown fell below such
standard, was fatal to their claim in professional negligence against the
appellant surveyors. The judge did not have the evidence upon which he was able
to make a finding of negligence. The evidence of Mr Gannon was relevant to the
state of the retaining and wing walls, but Mr Gannon was not qualified to
express an expert opinion upon the practice accepted at the time as proper by a
responsible body of chartered surveyors (not structural engineers) skilled in
the task of undertaking structural surveys. He was asked in cross-examination
by Mr Moody, counsel then appearing for the defendants, if he carried out
structural surveys for house buyers and replied:
Not
structural surveys in the same way that chartered surveyors carry out
structural surveys.
The judge
asked:
Q. You are the
sort of chap who is called in when there is a structural problem?
A. Correct.
We are called in — we do a structural engineer’s report.
He agreed that
he would not do the job that the defendant surveyor had done, but would be
called in by the surveyor if there was cause for concern. Mr Moody then asked:
Q. But [in]
para 401 of your report you say that Metcalfe Hambleton were negligent in
failing to point out this potential problem. The fact is that you do not know
precisely what a surveyor, carrying out a structural survey has to do, do you?
A. I know
things that surveyors on a day to day basis refer to me, and therefore I felt
able to say that this cracking should have been pointed out.
Mr Aldous
submitted that this evidence demonstrated no more than that there was a
reasonable body of chartered surveyors who would have referred a similar crack
to Mr Gannon for further investigation, and he had no knowledge whether similar
cracks would not be referred to a structural engineer by other equally
competent chartered surveyors.
The judge
considered the relevance of the evidence of Mr Gannon and said:
The question
that needs to be addressed, is whether Mr Gannon, a chartered structural and
chartered civil engineer, is a suitably qualified person to show what a
competent surveyor could reasonably have been expected to know and do when
carrying out a structural survey for would be purchasers? Put another way, must
an allegation of professional negligence against a chartered surveyor fail,
unless there is evidence from a similarly qualified chartered surveyor to the
effect that cracking would have been noticed and as a result a structural engineer
should have been called in?
I confess to
some difficulty in resolving this question, for it is certainly normal to find
a like professional being called in a professional negligence case, and no
reason has been advanced by the plaintiffs why this was not done in this case,
on the issue of liability.
Where however
two engineers agree that had they been called in, they would have caused
further investigations to have been carried out — which, in my judgment, would
have been likely to have revealed both the inadequacy of the design of the
retaining wall and its causative link with the crack — and one of the engineers
(Mr Gannon, whose evidence I accept) says that a structural engineer should
have been called in — that is evidence that is both cogent and admissible in
determining whether a chartered surveyor carrying out a structural survey was
negligent.
Accordingly,
where there is a dispute between the evidence of Mr Gannon and Mr Dickinson, I
prefer the evidence of Mr Gannon.
Negligence
I conclude on
the balance of probabilities:
1. the crack
in the wing wall was present in July 1992;
2. it was
either overlooked by Mr Brown, or he did not appreciate its structural
significance, in particular having regard to its proximity to the retaining
wall, and the size of the retaining wall;
3. a
competent surveyor would have noticed the crack and would have called in a
structural engineer to advise, which Mr Brown failed to do;
4. a
structural engineer would have advised that the retaining wall was inadequately
designed and that the cracking was causatively linked to the failure of the
retaining wall.
Mr Aldous
argued that the judge failed to apply the proper test in a professional
negligence claim and was in error in accepting the evidence of Mr Gannon on the
issue of negligence. Further, he ought not, on this issue, to have undertaken
the task of deciding whether he preferred the expert opinion of the structural
engineer to that of a chartered surveyor (Mr Dickinson). The judge ought to
have asked whether the owners had discharged the burden of showing that Mr
Brown had fallen short of the required standard by acting in a way that no
reasonable body of competent professional opinion would accept.
Mr Martin
Edmunds, for the owners, submitted that the crack, had he noticed it, should
have alerted Mr Brown to the need for further investigation. The judge was
entitled to rely upon the evidence as a whole, and the support for the evidence
of Mr Gannon, from the other evidence called by both sides against the
background of the particular concerns of the owners about the steepness of the
site and the possibilities of subsidence, these concerns being communicated to
Mr Brown. The evidence of Mr Gannon was admissible and the judge was entitled
to act upon it.
In Jackson
& Powell on Professional Negligence, (3rd ed 1992) the authors, at
p211, suggest:
In common
with other professional persons and in the absence of an express term to the
contrary, the standard required of a surveyor is that of the ordinary skilled
man exercising the same skill as himself. He is variously described in the
cases as the ‘reasonably skilled,’ ‘competent,’ ‘prudent’ or ‘average’
surveyor.
With this
helpful summary in mind, I turn to the question whether a court is entitled to
make a finding of professional negligence against a chartered surveyor based
upon the evidence of a structural engineer, and whether the court is entitled
to come to that conclusion contrary to the expert evidence of a chartered
surveyor.
By section 3
of the Civil Evidence Act 1972 the opinion of a witness in any civil
proceedings on any relevant matter on which he is qualified to give expert
evidence shall be admissible in evidence. The question whether a witness has
the requisite expertise to give an opinion on any relevant matter is, in my
judgment, one going to admissibility, not merely to weight.
There have
been a number of decisions in which this court and the High Court have had to
consider the expertise of a witness engaged in
Investments Ltd (1969) 4 BLR 133, where an allegation of professional
negligence had been made against an architect, Sachs LJ said, at p139:
Now Mr Harvey
urges that this is a class of case in which the court can find a breach of
professional duty without having before it the standard type of evidence as to
what constitutes lack of care on the part of a professional man in the relevant
circumstances. There may well be cases in which it would be not necessary to
adduce such evidence — as, for instance, if an architect omitted to provide a
front door to the premises. But it would be grossly unfair to architects if, on
a point of the type now under consideration, which relates to a special type of
dwelling, the courts could without the normal evidence condemn a professional
man.
In the case of
Investors in Industry Commercial Properties Ltd v South Bedfordshire
District Council [1986] 1 All ER 787* professional negligence was again
alleged against a firm of architects, and Slade LJ in the judgment of the court
cited Sachs LJ in Worboys (supra) and said, at p808h:
*Editor’s
note: Also reported at [1986] 1 EGLR 252
Expert
evidence from suitably qualified professional persons is, in our judgment,
admissible to show what competent architects in the position of Hamiltons could
reasonably have been expected to know and do in their position at the relevant
time. Indeed, in our judgment, there could be no question of the court
condemning them for professional negligence on account of their failure to
appreciate points (3) and (4) and to take the suitable consequential action,
unless there were appropriate expert evidence to support the allegation that their
conduct fell below the standard which might reasonably be expected of an
ordinarily competent architect (cf Worboys v Acme Investments Ltd (1969)
4 BLR 133 at 139 per Sachs LJ).
The expert
evidence before the judge consisted of evidence from three engineers and one
architect, Mr Foster. The questions put to the engineers and answered by them
included questions relating to the nature and extent of the professional duties
owed by Hamiltons to Anglia. However, we think that little reliance can be
placed on their answers to these particular questions, which related to a
profession other than their own. The only directly relevant evidence in this
context was that of Mr Foster, who was called on behalf of Hamiltons.
The court held
that, in the light of the only directly relevant expert evidence, the council
had not established that the architects were in breach of their professional
duty. In Whalley v Roberts & Roberts [1990] 1 EGLR 164 Auld J
applied the principles set out by Slade LJ and Sachs LJ to a claim against a
firm of surveyors. He held, in respect of the evidence of an architect and a
civil engineer, that however competent they might be in their respective
professions, neither could speak with authority on what is to be expected of
the ordinary competent surveyor. On the issue of the duty of care owed by a
surveyor he relied upon the evidence of the two surveyors.
In an
analogous line of cases dealing with the issue of medical negligence, the
courts apply ‘the Bolam test’:
The test is
the standard of the ordinary skilled man exercising and professing to have that
special skill … it is sufficient if he exercises the ordinary skill of an
ordinary competent man exercising that particular art. (Bolam v Friern
Hospital Management Committee [1957] 1 WLR 582 [at p586]).
As Lord
President Clyde pointed out in Hunter v Hanley [1955] SLT 213, at
p217:
In the realm
of diagnosis and treatment there is ample scope for genuine difference of
opinion and one man clearly is not negligent merely because his conclusion differs
from that of other professional men …
The true test
for negligence is to prove that the doctor was guilty:
of such
failure as no doctor of ordinary skill would be guilty of if acting with
ordinary care …
In the medical
negligence cases, the expert evidence would be expected to come from medical
practitioners appropriately qualified to give it.
In my
judgment, it is clear, from both lines of authority to which I have referred,
that a court should be slow to find a professionally qualified man guilty of a
breach of his duty of skill and care towards a client (or third party) without
evidence from those within the same profession as to the standard expected on
the facts of the case and the failure of the professionally qualified man to
measure up to that standard. It is not an absolute rule, as Sachs LJ indicated
by his example, but, unless it is an obvious case, in the absence of the
relevant expert evidence the claim will not be proved.
In the present
appeal I am satisfied that the judge did not have the evidence upon which he
would have been able to make a finding of professional negligence against Mr
Brown. First, I do not consider that this was such an obvious case that there
was not room for two views of the relevance of the crack and the steps, if any,
which ought to have been taken in July 1992. Since it was not an open and shut
case, such as that contemplated by Sachs LJ in Worboys (supra),
the evidence of Mr Gannon was not, in my view, expert evidence admissible in
accordance with section 3 of the Civil Evidence Act 1972 on the issue of
negligence. From the extract of his oral evidence, set out above, he was aware
of the surveyors who did call him in to investigate. He, of course, did not
know of those who did not call him in nor whether it was reasonable or not
reasonable not to do so. Consequently the judge did not have relevant and
admissible evidence from the owners to show failure by Mr Brown to comply with
the standard of skill and care to be exercised by a competent surveyor
instructed by the owners. The judge failed to apply the correct test. If he had
done so, he would have been driven to the conclusion that the owners had failed
to prove their case. In my judgment, the first ground of appeal is well founded
and I would allow the appeal.
It is not
strictly necessary to consider the other grounds of appeal, but since they have
been argued before us, I shall deal with them shortly.
A subsidiary
part of the first ground of appeal, relevant also to some of the other grounds,
was the contention that the evidence of Mr Gannon had in any event been
completely discredited in cross-examination, both in relation to the nature of
the construction of the retaining wall and whether there was any evidence that
it had moved. While Mr Aldous satisfied me that there is much to be said in
support of this submission, in the end I am not persuaded that there is enough
to justify this court differing from the judge, who made the following clear
finding:
I find that
the cracking was likely to have been caused, in part at least, by failure of
the retaining wall, probably by overturning rather than sliding. In so far as
there is a conflict between Mr Gannon and Mr Stow on this aspect, I prefer the
evidence of Mr Gannon.
It is,
however, right that I should say, in deference to the arguments of Mr Aldous,
that I readily understand why the defendants are critical of Mr Gannon’s
evidence, and it is only after some hesitation that I have been persuaded to
the view that I have expressed above. I should explain briefly why I find the
judge’s acceptance of Mr Gannon’s evidence surprising:
(1) The judge
said that ‘there is scant, if any, evidence of failure of the retaining wall’
and that ‘Mr Gannon … based his conclusions solely on the two cracks and the
inadequate design of the retaining wall’. Apart from these two cracks — one in
the wing wall itself and one (not suggested to have been present when Mr Brown
inspected) at the junction between the wing wall and the retaining wall — there
was no evidence of the retaining wall’s having moved; and the absence of cracks
in the front rendering meant that, if it had moved, that movement must have
taken place very early and before the rendering was applied.
(2) Though the
judge made no express finding, I am satisfied that Mr Stow’s evidence had
established that Mr Gannon was wrong as to the thickness of the middle and
bottom parts of the retaining wall: it was much more substantial than he
thought.
(3) Not only
did the wing wall have no structural function — something that, speaking for
myself, I should have thought (from the
irrefutable evidence provided by Mr Stow’s simple excavation — but it merely
abutted on to the rear of the retaining wall: there was no integrating joint
and attachment was by a smear of mortar only.
(4) Mr Gannon
had given some contradictory answers as to whether the retaining wall had, in
his view, moved by overturning or sliding.
However, Mr Gannon
did have the point, to which he adhered, that the crack in the wing wall was
only very slightly wider at the top than at the bottom, whereas, he said, had
it been caused simply by subsidence of the inadequately founded wing wall
itself, it would have been a very obvious V-shape. Mr Stow, cross-examined on
this point, did not really refute it, and accepted that it was only with the
advantage of his own excavation at the side of the wing wall that he was able
with confidence to conclude that movement of the retaining wall had not
occurred.
Accordingly,
as I have said, I reluctantly and with hesitation accept that there is no
proper basis on which the judge’s acceptance of Mr Gannon’s evidence can be
said to be, in effect, perverse. This conclusion also disposes of ground 2 of
the grounds of appeal (the contention that there was no sufficient evidence
that the crack in the wing wall was caused by overturning of the retaining
wall).
Ground 3
asserts that there was no sufficient evidence on which the judge could find, as
he did, that the crack in the wing wall was present when Mr Brown inspected.
This ground, however, is also bound up with the point about the significance of
the crack in the wing wall, and therefore must also be rejected.
Ground 4
contends that the judge failed to find whether Mr Brown could without
negligence have missed seeing the crack. Given Mr Brown’s own evidence that if
it was there he would have seen it, I reject this ground.
(The fifth
ground calls for no separate comment, since it is linked with the first,
asserting as it does that the judge was wrong to reject Mr Dickinson’s evidence
that a chartered surveyor would not have regarded the crack as significant.)
By the sixth
and last ground it is contended that the judge, in concluding that had a
structural engineer been called in he would have advised further investigations
which would have led to advice that the wall needed replacement or at least
reinforcing, erroneously relied on the misapprehension that Mr Gannon and Mr
Stow were in agreement that such work was necessary; whereas Mr Stow’s evidence
was that, though there were design defects in the retaining wall, it had
performed satisfactorily, and he could not have recommended any such action.
However, while the judge was undoubtedly mistaken in attributing to Mr Stow the
view he did, this ground is hardly significant given: (i) the plaintiffs’ case
that they were particularly concerned about the risk of subsidence and would
have proceeded on the basis that the wall needed replacement; and (ii) Mr
Gannon’s own view that that was what was required.
Though I have,
for these briefly expressed reasons, felt impelled to reject grounds 2 to 4 and
ground 6, I have to say that I am left with the strong impression that in all
the circumstances the judge’s preference for the evidence of Mr Gannon over
that of Mr Stow was surprising; and that the former’s views as to the
significance of the cracks in the wing wall, the movement of the retaining wall
and the need to replace the retaining wall were, in the light of all the
evidence, also surprising. This impression is certainly not diminished by the
fact, as we were told it is, that the wall stands to this day, apparently
unmoved and unreinforced. However, it is on the first ground of appeal that I
consider this appeal should be allowed.
I would allow
the appeal and set aside the judge’s order and dismiss the action by the owners
against the appellant surveyors.
HUTCHISON
LJ and SIR JOHN VINELOTT agreed and did not
add anything.
Appeal
allowed with costs.
