Claim in negligence against surveyor – Expert evidence from structural engineer – Whether court entitled to make finding of professional negligence against chartered surveyor based on evidence of structural engineer – Judge finding for plaintiffs – Surveyor’s appeal allowed
The plaintiffs, S and M, the owners, instructed the defendants, chartered surveyors, to survey and report upon the structural condition of 8 Claypark Terrace, Byter Mill Lane, Stoke Gabriel, Devon. B, a partner in the defendant firm, prepared a report and the owners bought the property for £70,000. The property was built on a steeply sloping site on which a retaining wall had been built in 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 terrace garden behind the wall. A flight of steps rose from the car park at the top of which was a small “wing” wall which was not an integral part of the retaining wall and had no structural significance. A crack appeared in the “wing” wall and further investigation revealed the inadequacy of the retaining wall and the need for it to be replaced. The owners brought a claim for £7,500 for diminution in the value of the property alleging that B had failed to notice the crack in the wing wall, and that had he done so the inadequacy of the retaining wall would have been discovered. A structural engineer for each party gave expert evidence at trial as to the state of the retaining and wing walls. The judge found for the owners concluding that the crack was there to be seen in July 1992 when B made his inspection, that a competent surveyor noticing the crack would have called for further investigation from a structural engineer and that the crack was likely to have been caused in part by failure of the retaining wall. The defendants appealed contending, inter alia, that the judge had erred in relying on the evidence of a structural engineer as to what a reasonably skilled chartered surveyor should have done.
Held The appeal was allowed
1. A court would be slow to find a professionally qualified man guilty of a breach of his duty 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: see Whalley v Robert & Roberts [1990] 1 EGLR 164 and cf Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 ).
2. The judge had not had the evidence upon which he would have been able to make a finding of professional negligence against B. It was not such an obvious case that there was not room for two views of the relevance of the crack and therefore the evidence of the structural engineer was not admissible in accordance with section 3 of the Civil Evidence Act 1972 on the issue of negligence. Consequently, the judge did not have relevant and admissible evidence from the owners to show failure by B to comply with the standard of care and skill to be exercised by a competent surveyor instructed by the owners.
Grahame Aldous (instructed by Cameron McKenna, of Bristol) appeared for the appellant; Martin Edmunds (instructed by Stones, of Exeter) appeared for the respondent.
