A surveyor ordered to pay almost £400,000 in damages to a couple, whose £1.2m dream home in Devon was plagued with leaks, has taken the case to the Court of Appeal. The outcome is eagerly awaited by valuers, as it has potentially significant implications for the assessment of damages for surveyors’ negligence.
Lawyers representing now-retired Richard Large argue that a High Court judge departed from long-standing principles in ordering him to pay such a large sum.
Barrister Simon Wilton, opening the appeal, said that the judge had treated Large “like an insurer”, rather than taking the correct approach of calculating the loss of value of the property attributable to the negligent advice in this case.
Wilton said: “Amidst the placid waters of surveyors’ negligence claims, it is a long time since a judge’s decision on measure of loss has caused such a disturbance.”
He argued that the judge had departed from the well-established method of calculating damages, comparing the price paid with “what the property would have been worth if the surveyor had advised what he should have advised”.
Chris and Kerry Hart claimed that they feared leaving their home on a hilltop location in rural Devon in case it rained while they were not there.
They took Richard Large to court, and earlier this year won a High Court ruling that, if not for Large’s negligent advice, they would not have bought the property in 2011, shortly after it had been refurbished.
Before buying it, they had engaged now-retired surveyor Large to carry out a homebuyer report, which highlights potential issues using a traffic light system. The only “red” item related to a problem with drainage.
In his May ruling, deputy judge Roger ter Haar found that evidence in the trial showed that there were large leaks before the Harts bought the property, and after. He concluded that Large should have recommended obtaining a professional consultant’s certificate. As Large didn’t, the judge found he was negligent.
He said the Harts were entitled to £750,000 in compensation. However, they had also been suing their solicitors, Michelmores, and the architects who designed the refurbishment, Harrison Sutton. They had settled just before trial, paying the Harts £376,000. Therefore, the judge reduced the sum payable by Large to £374,000, and added an extra £15,000 “for inconvenience and distress”.
The judge said: “I gained the firm impression that a purchaser in the position of the Harts could be left in the position where the report they had contracted the surveyor to provide could be wholly or partly worthless because all it would in truth be saying would be, ‘I see no reason not to suppose that everything was done properly when the building was redeveloped/refurbished.’
“In my view, the only ways that the surveyor can protect the prospective purchaser are: (1) to spell out the limitation on the advice given; (2) to be particularly alert to any signs of inadequate design or faulty workmanship; and (3) to draw attention in appropriate terms to protections available to the purchaser, including (on the facts of this case) a Professional Consultant’s Certificate.”
Giving evidence at trial, Kerry Hart said in a witness statement that it was “not possible to describe in a few short paragraphs the devastating impact that the disastrous purchase of the house has had on our family”.
“We have not just been living in a leaking, defective and dangerous house since we moved in eight years ago,” she said. “We have also endured attempted remedial works to the property which have left large sections of our home unusable. During such periods our home has had staircases boarded up, windows boarded up, scaffolding preventing doors and windows from being opened, for months at a time, in hot weather.”
She said that they “would never have considered purchasing the property at all if we had known it had any significant faults”.
The Court of Appeal is expected to reserve its decision, with a judgment likely to follow in the New Year.
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