So here we start at the beginning – WHY DO SURVEYORS HAVE A DUTY OF CARE TO THEIR CLIENTS?


This is the result of cases that have reached our Courts such as Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 where the House of Lords said:


“.. if in a sphere where a person is so placed that others could reasonably rely on his judgement or on his skill or on his ability to make careful enquiry, such person takes it on himself to give information or advice to, or allow his information or advice to be passed on to another person who, as he knows or should know, will place reliance on it, then a duty of care will arise”


So this is the starting point of duty of care. This statement applies to all professionals, surveyors, architects, engineers, lawyers etc. – it is not exclusive to surveyors – so as lawyers we are taught, amongst other things:


• never to give opinion as a favour – don’t do favours


• stay professional • where applicable use necessary caveats


• always follow up all conversations in writing – contemporaneous evidence! Vital in a dispute!


To add to this – always make sure you “stick” to your brief and make sure your contract covers the work you are going to undertake.


The Contract – Its Importance – when is it formed? Importance of incorporation


If you are going to undertake a condition survey and a valuation survey, check and ensure your contract with your client covers (states) both activities – condition surveys and valuations – you may have two contracts with your client.


A valuation survey contract may contain the following clauses:


• A clause to restrict your total potential loss arising from providing a valuation


• Limiting liability by removing responsibility of change in value because of a change in a vessel’s location


• Limiting or restricting liability because of market forces


• Excluding liability or loss arising from title problems


It can be difficult to restrict your potential loss to a set figure or percentage of something particularly when dealing with consumers – there is a wealth of legislation in this area but unfortunately there is not time to deal with this today.


A contract is formed when there is offer, acceptance and consideration.


If you wish to apply a clause you have to have had it incorporated into a contract before acceptance – too late if put in the report – but don’t fall foul of misunderstanding the difference between a contractual clause and a caveat in a report:


Example in a contract:


• The Surveyor will not be responsible for any losses arising from a change in market value due to geographical location of the Vessel.


Example of a caveat in a report:


• This valuation is based on the value of the Vessel at the location it was valued for this report and at no other geographical location. You should be aware that geographical location may affect the sale value of a vessel.


The Report • September 2017 • Issue 81 | 73


Before we start a brief word – “Immunity” – not “Mutiny”!


This is a “rare breed” nowadays and not even expert witnesses have immunity from being sued over matters in the course of proceedings following a landmark rule in the Supreme Court - Jones v Kaney [2011] UKSC 13. This decision overruled the 400-year-old protection that gave expert witnesses immunity from suit for breach of duty whether in contract or negligence when they are participating in legal proceedings.


We shall not start with the tale of pooh sticks but in a way the story is really a little like the game of claims - you drop your sticks and then wonder who is going to win – that is the start of the job and the finish of litigation!


“So before you drop them you need to know the rules, duties and obligations”


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