Presentation to SCSI Claims and Risk Management. 13 October 2011 By Tara Cosgrove Beale and Company Solicitors

Transcription

1 Presentation to SCSI Claims and Risk Management 13 October 2011 By Tara Cosgrove Beale and Company Solicitors

2 Elements of a Claim Considering any claim the court will consider a number of elements. The existence of a duty owed by the Defendant. Breach of that duty. Loss suffered by the Plaintiff. Cause of that loss. Contributory negligence and/or breach of duty. What damages, if any, the Plaintiff is entitled to recover.

3 Claims in Contract Claims against professionals are brought in contract both oral or written. Express or implied that services are carried out with reasonable care and skill. Contractual terms are the starting point in the consideration of the scope of any duty.

4 Terms of Engagement Set out clearly the scope, duration and purpose of any work, specific tasks to be undertaken, any limitations on the service, the fee arrangements, the client tasks and responsibility, termination rights and limits on liability. Any limitations of liability provisions should be fair, reasonable, clear and agreed with your client. Consider clauses excluding liability for indirect or consequential loss and/or loss of profits, monetary caps on liability, excluding liability arising from deficient information provided by the client and excluding liability for claims by third parties.

5 Liability in Tort Duties in tort may be wider than the contractual duties and extend to a wider class of persons. Liability can exist despite the absence of a contract for advice given in an informal context. Discussions with someone who was clearly seeking advice as a potential client could possibly be considered to have the requisite characteristics for there to be an assumption of responsibility.

6 Liabilities to Third Parties Smith v Bush liability to a third party purchaser. A recent UK Court of Appeal case of Scullion v Bank of Scotland Plc (t/a Colleys) has however distinguished between buy to let investors and an ordinary householder. Failed to establish foreseeability or a sufficient degree of proximity between himself and the surveyor. The Court distinguished the case from the earlier case of Smith v Bush, which had involved an ordinary householder purchasing his home.

7 Liability for Negligent Misstatement David Walsh v Jones Lang La Salle Limited Irish case where liability to third party purchaser. The Plaintiff asserted that in publishing the incorrect calculation of a floor area within a sales brochure the defendant was guilty of negligent misstatement. Wildegust and another v Bank of Ireland and another proximity test and special relationship. Loss was reasonably foreseeable by the Defendant, and should have known the Plaintiff would estimate the value of the property with particular reference to the rental income.

8 Standards Required The professional standard this is that of the ordinary skilled professional exercising the same skill. This is established by reference to the general practice of your profession and the guidance of your professional bodies. Relying on a standard practice, but one clearly flawed, will not be a defence. The level of the standard of care is determined by the Court with the benefit of expert evidence.

9 Most common claims arising from alleged negligent surveys A house was supposed to be located on the property in question did not exist. Excessive cracking arising from subsidence. Problems with the roof support. Dampness, water penetration and rot. Inadequate ventilation or insulation. Deficient plasterwork internally or externally. Non-compliance Building Regulations and Fire Regulations. Inadequate drainage.

10 Risk Management Top Tips Identify your role and terms. Confirm your instructions. Record in writing all dealings with your client and others. Establish the extent of the survey and or your services Clear report writing. Defects and Limitations. Comply with SCSI / RICS Standards. Measurements.