A contract is formed by offer, acceptance and consideration – and of course requires


incorporation of all you wish to include before acceptance by your client.


Many clauses are included in


contracts that a Court will not uphold – frequently because of consumer law – but they are still included.


The Next Elements for Determining Liability and Quantum of Loss


After a Duty is identified then there has to be a recognised breach of Duty of Care, followed by Causation (a slippery devil!) and then identified Loss.


Breach of duty is based on fact and what would normally be expected combined with case law; interestingly the most important part CAUSATION is often overlooked. What was perhaps missed or a negligent statement relied on has to cause the loss.


If


for example a vessel is purchased before the client receives the survey report, there is an argument for no reliance on the content (or at least some depending on what was discussed between surveyor and client before purchase) and hence no causation and no liability. So a negligent misstatement can be made but if not relied on then there is no liability for losses.


Determining the Loss


Cost of Repair v Diminution in Value! Determining the Measure of Damages


It depends on the circumstances and what you were undertaking. If a condition survey was undertaken often the claim is for cost of repair if they are reasonable but equally it can be argued diminution in value or purchase of a replacement vessel.


If reinstatement costs are unreasonable in all the


circumstances then the measure of damages will generally be diminution in value.


Harrison and others v Shepherd Homes Ltd and others [2011] EWHC 1811 (TCC)


Keep To Your Area of Expertise


Don’t be tempted by clients to go outside your expertise.


It is


not uncommon for client’s to ask a legal question or lead you into those realms – keep to providing facts and opinion that a surveyor would ordinarily be required to


provide in the circumstances, and not quasi legal advice such as by providing opinion on whether a person or entity may be liable or negligent – this is for lawyers and barristers to determine in their conclusion on the facts you and others provide combined with case law which is their domain. So a simple example is:


Surveyor:


The X was tied in an XYZ method which is not commonly found in the UK and this method has a greater frequency of failure with ZZZ high tides.


The Lawyer/Barrister:


As X was tied in an XYZ method which is not commonly found in the UK and has a greater frequency of failure with ZZZ high tides, your client should have known that ZZZ high tides occurred at ABC location and so your client should not have allowed the X to be tied in an XYZ manner and so was negligent in allowing the XYZ method to be used.


A FEW ENDING TALES Remember anyone can have an opinion,


right or wrong as it may be, and everyone can make a negligent misstatement of fact.


Karen Brain ACII, Solicitor (Non-practising) Managing Director


Matrix Insurance Services Ltd Tel: 01892 724060 enquiries@matrix-ins.co.uk


Matrix Insurance Services Ltd and the authors of this presentation do not accept any liability for any errors or omissions in this article. The article is for general information only and is not intended to constitute legal or insurance advice and should not be treated as a substitute for such advice.


We (lawyers) were always told “don’t talk law in pubs! Walls have ears!”


74 | The Report • September 2017 • Issue 81


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