chapter  8
8 Pages

What is my pre-contract liability?

Q. What is my liability in surveying a new site for a client? An architect, engineer, surveyor or other professional should, as a matter of course, thoroughly survey a new site to avoid designing a structure which would infringe or interfere with the rights of others. If this occurs, he may be liable in damages. Although an architect is to visit the site and carry out an initial appraisal, it is to be inferred from the RIBA Architects’ Appointment that the preliminary or basic services which an architect will normally provide places no greater personal obligation upon him to search and find background information concerned with the site than specifically to ask the client to provide such information on the ownership of land, lessees, easements, encroachments, underground services, rights of way and support, boundary fences and other enclosures and restrictions affecting the land. To accept without checking information about the site given by a client or some person unauthorized by a client is unwise. For example, in Columbus Co. v. Clowes [1903] 1 K.B. 244, Mr Clowes was an architect who was commissioned by Columbus Co. Ltd to prepare plans and specifications for a factory and offices to be built on land in the City of London. Mr Clowes was informed by a former employee of the company, who had no authority from them to give any such information, that the site in question was of certain dimensions which were in fact considerably less than the real dimensions of the site. The architect assumed that this information was correct and without taking any steps to measure and survey the site drew his plans on the assumption that the site was smaller than it actually was. Wright, J. remarked that it was the architect’s duty ‘to have surveyed the site and measured it and taken out the proper dimensions before proceeding with his plans’. Q. Must I physically survey a site, or can I rely on any documents? To determine the boundaries of a site by relying on information contained within the title deeds or on Ordnance Survey maps, which may be drawn to such a small scale that simple enlargement leads to error or which may be out of date, is as ineffectual in discharging one’s duty of skill and care as, in some cases, relying on information about the encumbrances of land deposited with the Office of Local Land Charges. For example, in Mower v. Hurr [1983], a dispute arose over the ownership of an area of land which lay between a roadway at the front of a lodge and the well-established hedge which enclosed it. The plan showing ownership of each part of the land was unclear for several reasons.

It was drawn to so small a scale (1 : 2500) that it did not show the disputed area; the road ran alongside or very close to the wall of the lodge; and the precise boundary did not tally with the position on the ground whereby, in 1978, the parties to the conveyancing of the hedge intended the disputed land should be included in the sale. Furthermore, although a surveyor did take detailed measurements of the site which were inserted on the plan, they only related to the rear of the property, no one felt the need to record the dimensions in the front of the lodge. So acrimonious was the dispute that the Court of Appeal remarked unfavourably upon the use of small-scale plans which are seldom satisfactory in indicating precise boundaries. Such acrimonious disputes could easily be avoided if a degree of care had been take in the preparation of plans. The failure of an architect, engineer, surveyor or other professional to exercise reasonable skill and care in producing an inaccurate survey renders him liable to a client for any reasonable cost in making good the plans. Nevertheless, the client is under an equal obligation to act reasonably, not to incur unnecessary expense. It would be reasonable for you first to be given the opportunity to correct the drawings and make good the plans without charge; indeed, you would be bound to do so. If, however, the clients had called in another architect or other professional, he would in all probability insist on beginning afresh and refuse to make any use of your existing plans. That, then, would be a reasonable course for the client to pursue. Q. If I get a survey wrong, for how much will I be liable? The assessment of what are reasonable damages fluctuates by as much as what is considered reasonable skill and care, where you are commissioned to carry out a structural or measured survey on behalf of a client who then buys the property on the strength of the report which turns out to be inaccurate. There is no universal rule for damages. Generally the proper measure of damages is the cost of repair of the defects, which a proper inspection by a competent surveyor would have brought to light, rather than the difference between the purchase price and the value of the property as it should have been described. Q. When and in what detail should I do a soil survey to discharge my duty of skill and care? Of all the unknown quantities in building, the substructure is the most variable, often the result of limited or no prepara tory investigations. Careful and detailed soil surveys are, as a general rule, vital to avoid liability in this area. A number of criteria have been put foward as suitable for determining the detail in which a soil survey should be done to find out the load-bearing capacity of the soil, including the nature of the substrata, the watertable, etc., the weight of the proposed building and its estimated cost relative to the cost of trial holes, bores or percussion tests, the acceptable levels of settlement and the extent of existing knowledge on ground conditions in the area. All these have inherent weaknesses. A low-cost, light-weight building in a place with which you are familiar may suggest that a detailed survey is unnecessary, especially if ground conditions in the area are normally good and reliable. Such a presumption may be foolhardy. You must take the consequences if you accept the results of soil tests taken by a previous employee of your client which turn out to be false or insufficient and you have not examined the ground to determine the correct design of the foundations. This may be considered your bounden duty, especially when the cost estimates for substructure work may be wildly inaccurate. Even carrying out what may be considered, in some circumstances, a full and detailed survey with the