E Construction Surveying Liability of Surveyors

Professional Negligence All professional people are human and all humans make mistakes the function of the law in this area is twofold –provide redress for the client who has suffered loss as a result of professional incompetence –deter professional people from being negligent and thus promote higher standards of professional service

Who is the Surveyor Sole practice –in practice by their selves using their own name –takes all profit –only person to incur debt in his own name –only person to benefit in terms of reputation for the excellence or otherwise of the work performed

Who is the Surveyor Partnership –surveyor carries the following added responsibilities personally responsible for debts incurred by other partners responsible jointly for the excellence or otherwise of the work performed responsible for the activities of all employees in the course of their work

Who is the Surveyor Corporation –two forms surveyors themselves are directors and employees of the company principals are one or more proprietary companies –surveyors themselves are directors and employees of the business –advantages limitation of liability, income sharing, estate planning, superannuation

Who is the Surveyor Employees –encompasses both private practice and government the simple fact that a person is an employee does not exonerate him from liability for their acts and omissions an employee who is engaged by a person in private practice whether that person be a partnership, a sole practitioner or a company, is in the front line of the liability for his own activities

Types of Liability Vicarious Liability –the liability which attaches to one person because of the tortuous act or omission of another –a tort may be defined as the breach of an obligation, neither exclusively contractual or quasi-contractual, which breach will ground a common law action for unliquidated damages

Types of Liability Vicarious Liability –Law of Tort imposes on each person a duty to take reasonable care to avoid causing loss or injury to those immediately affected by his conduct –general rule imposes liability on an employer where a tort is committed in the employees course of employment

Types of Liability Vicarious Liability –The liability of an employer in those circumstances is derived from the interlocking connection between the following three factors. There has been a negligent act committed by the employee that there is a special relationship between the person who committed the negligent act or omission and the person sought to be made liable i.e. employer and employee, and That there is a connection between the negligent act or omission and that relationship of employment, in this case the negligent work is carried out in the course of employment

Types of Liability Vicarious Liability That there is a connection between the negligent act or omission and that relationship of employment, in this case the negligent work is carried out in the course of employment

Types of Liability Contract Liability –the person who rings, walks into the office or writes asking a surveyor to do something which surveyors do carry out in their professional work is, if his request is agreed to, making a contract –contracts do not have to be in writing or have all of the terms set out in a written document

Types of Liability Contract Liability –content of the contract includes terms that are implied by law if work is carried out then their will be an appropriate fee surveyors agreement to the work carries with it an implied term that the work will be carried out in a proper and manner consistent with the standards of the surveying profession

Types of Liability Contract Liability –in claims of breach of contract, the action can only be taken by a person who is a party to that contract, that is, a person who has been one of the parties in the making of the contract

Types of Liability Contract Liability –claims for breach of contract are founded on the principal that the obligation is cast on the surveyor to do or provide in accordance with the contract he has made –if the surveyor falls short in his obligation then, even though the reason for this may be some error on the part of his employee, the liability to the client is a direct liability, the basis of which is the contract

Types of Liability Contract Liability –in sub-contracting work to another professional, the surveyor is not thereby absolving himself of responsibility to his client as he is still bound by his contract to his client –surveyor may be entitles to an indemnity from his sub-contractor based on breach of an implied term in the sub-contract

Types of Liability Contract Liability –a surveyor is liable to his client for breach of contract as soon as the contract is breached it is not necessary for the client to have suffered damage

Types of Liability Negligence ( Non- Professional ) –in conducting a business, a person can be liable to other parties for activities which have really got nothing at all to do with with his profession but, nevertheless, are risks he runs because of his business undertaking –covered by insurance policies such as the Comprehensive Motor Vehicle policy or a Public Risk Policy

Types of Liability Professional Negligence (Non Contractual) –Where the duty of the professional man is purely contractual, the duty is owed to the other party of the contract –In tort, the duty is quite independent of the agreement and is a liability which is primarily fixed by the law itself –on the one hand, there is a liability to the client and on the other, a liability to the whole world –the basis of the wider liability is negligence

Types of Liability Professional Negligence (Non Contractual) –negligence is the failure to exercise the degree of skill and competence of an ordinary practitioner in that profession –unlike an action in contract, before a person can take action for negligence, he must have suffered some injury or damage

Types of Liability Negligent Mis-Statement –“If someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies on such skill a duty of care will arise”

Professional Liability Law of Contract Law of Contract provides that when a contract is broken the breakee shall pay damages to the other contracting party equivalent to the loss that has occurred –as far as money can do it the client suffering damage is entitled to be placed in the same position as if the contract had been performed properly

Professional Negligence Law of Tort Law of Tort imposes on each person a duty to take reasonable care to avoid causing loss or injury to those immediately affected by his conduct

Professional Liability Standard of Care Every profession contains members of widely differing abilities Bolam Test –A man need not possess the highest expert skill. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art

Professional Liability Standard of Care The best that a person dealing with a surveyor can expect is that a surveyor will exercise a degree of care, skill and competence which is to be expected of an ordinary, competent surveyor carrying out work in the profession or in relation to a specialised branch of the profession

Professional Liability Standard of Care A surveyor’s liability for professional negligence arises out of the surveyor’s failure to exercise the level of care, skill and competence of an ordinarily competent surveyor carrying out work in the profession...

Professional Liability For Whom The liability of a Surveyor for professional negligence is a liability arising out of the personal conduct of –a surveyor, –a partner, –an officer of a corporation, or –an employee for whom the Surveyor is vicariously liable

Professional Liability For Whom - Employees Employees –at common law an employee is not exonerated for claims for damages suffered by third parties caused by acts and omissions carried out in the course of employment –usual for a third party to sue the employer but is not obliged to do so

Professional Liability For Whom - Employees Employees –at common law an employer is not barred from suing an employee for any contribution or indemnity for any damages obtained against the employer caused by the professional negligence of the employee

Professional Liability For Whom - Employees Employees –employees carrying out professional work outside the course of their employment may expose themselves to sanction under the appropriate legislation registering or licensing surveyors for carrying out work whilst unregistered, or personal liability for any professional negligence in the course of that work

Professional Liability Prevention - keep in touch Keep in touch with industry –read professional magazines –attend conferences –undertake short courses maintain safer working practices

Professional Liability Prevention - office records Office Records –systematic, simple, legible and up to date –records should be able to be read and fully understood by all employees –contracts should be written, fully understood by both parties and signed by both parties

Professional Liability - Prevention Field Operations Field Operations –complete plan search –check plan dimensions –check control –use independent checks –always mark the points required under the contract –no verbal reports until checking is complete –check field notes to calculation sheet to plan

Professional Liability - Insurance Professional Indemnity When does a claim fall under the professional indemnity clause –was the surveyor carrying out business in the usual sense of the term employees carrying out work outside the course of their employment may not be covered by their employer’s policy

Professional Liability - Insurance Professional Indemnity When does a claim fall under the professional indemnity clause –was the surveyor carrying out business in the usual sense of the term employees carrying out work outside the course of their employment may not be covered by their employer’s policy

Professional Liability - Insurance Professional Indemnity When does a claim fall under the professional indemnity clause –to whom does the surveyor owe a duty of care a person with whom the surveyor is in contractual relations a person to whom the surveyor owes a fiduciary relationship a person to whom a duty of care is owed for the negligent mis-statement of a surveyor a person to whom a duty of care is owed for the negligent act, error or omission of a surveyor giving rise to actual or threatened physical damage a person who suffers economic loss from the carrying out of survey work due to the existence of a sufficient degree of proximity between the surveyor;s negligence and the economic loss suffered

Professional Liability - Insurance Professional Indemnity When does a claim fall under the professional indemnity clause –to whom does the surveyor owe a duty of care a person to whom a duty of care is owed for the negligent act, error or omission of a surveyor giving rise to actual or threatened physical damage a person who suffers economic loss from the carrying out of survey work due to the existence of a sufficient degree of proximity between the surveyor;s negligence and the economic loss suffered

Professional Liability - Insurance Professional Indemnity Negligence has its roots in an unintentional form of conduct such as lack of knowledge or skill, forgetfulness or carelessness. Matters of dishonesty, fraud or criminal or malicious acts are intentional acts and are not covered under an indemnity policy