E4014 Construction Surveying

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E4014 - Construction Surveying

• Liability of Surveyors

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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

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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

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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

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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

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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

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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

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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

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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
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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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Professional LiabilityStandard 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

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Professional LiabilityStandard 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

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Professional LiabilityStandard of Care

• A surveyors liability for professional
  negligence arises out of the surveyors failure
  to exercise the level of care, skill and
  competence of an ordinarily competent surveyor
  carrying out work in the profession...

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Professional LiabilityFor 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

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Professional LiabilityFor 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

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Professional LiabilityFor 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

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Professional LiabilityFor 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

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Professional LiabilityPrevention - keep in touch

• Keep in touch with industry
• read professional magazines
• attend conferences
• undertake short courses
• maintain safer working practices

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Professional LiabilityPrevention - 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

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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

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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
  employers policy

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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
  employers policy

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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
  surveyors negligence and the economic loss
  suffered

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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
  surveyors negligence and the economic loss
  suffered

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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