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How To Claim For Negligence Essay

1539 words - 7 pages

It seems as though Brad and Chardonnay have been subject to professional negligence, or more specific negligent misstatement. Professional negligence is very similar to general negligence, one of the significant difference being you cannot claim for economic loss within general negligence but you can in professional (provided specific criteria are met).

To make a successful claim for this form of negligence there are four requirements that must be met; establishing a duty of care, proof of that duty of care being in breach, damages (this can include economic loss) and establishing that the beach has caused the damage. If a single one of those requirements are not met or are absent, the case will fail.

To begin a claim in professional negligence, you must begin with establishing that there is a professional duty of care owed towards the plaintiff. The most significant case in relation to professional negligence is Hedley Byrne v Heller & Partners Ltd [1964] AC 465. This is because for the first time, it established that a third party relying upon a statement made the him/her may be owed a duty of care by the maker of that statement. The outcome from the Hedley Byrne v Heller Partners (1964) established that a duty of care would be owed (in relation to statements) where there is a ‘special relationship’ between the giver and recipient of the advice or statement. Despite this, a definition for a ‘special relationship’ was not fully defined, however it tends to go by meeting these three requirements; a reliance by the claimant of the defendant’s special skill and judgement; knowledge, or reasonable expectation of knowledge on the part of the defendant, that the claimant was relying on the statement; and that it is reasonable in the circumstances for the plaintiff to rely on the defendant’s statement.

In terms of a ‘special relationship’. If a buyer is relying on a mortgagee’s report to buy a house and then discovers a major fault which was obviously there at the time of the survey, then they have lost money, as they have paid more than the house is worth. This constitutes economic loss. There is no claim for economic loss within negligence unless there is a special relationship between the professional and the third party who is relying on their advice.
Yianni v Edwin Evans & Sons [1982] QB 438 was the case in which it was established that 90% of house buyers rely on the mortgage valuations outside of contract to make their purchase decisions, ergo making the valuer owe a duty of care to the borrower on the basis they are reliant on their report. in the Yianni v Edwin Evans & Sons case, the valuer missed vital features in the property that would have been discovered if he had put in a little more care in the valuation, instead he did a ‘drive by’ valuation. So in Brad and Chardonnay’s case, the surveyor would have been aware that they were relying on his statement which is perfectly reasonable, Thus meeting the that fundamental point have been met...

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