Pilots die by their mistakes, Doctors go to jail for
their mistakes. A wrong survey can make two communities to fight and kill
themselves perpetually over land disputes. A mistake is potentially
damaging to the Surveyor and injurious to the public. As Surveyors, we owe a
duty of care to the public in securing and protecting property rights.
Cadastral information is a core data set of any land management and
administration. Land Surveyors are the first line of protection for private
property rights, therefore Surveyors must be right and believable and surveys
must be legally correct. The menace of quackery and various forms of
misconducts, sharp practices have made the public to form undisclosed opinions
about us. The time has come to rebuild the fundamental principles of the
profession which are honesty and integrity.
THE DUTY OF CARE
All professionals
owe their clients a duty of care, which is normally defined as ‘providing a service to the standard of a
reasonably competent member of that profession’. As Surveyors we owe a duty
of care to the public and of course to our profession. A duty of care is a legal obligation which is imposed on an individual requiring
adherence to a standard of reasonable care while performing any acts that could
foreseeably harm others.
This duty of care
arises from two independent sources. Where a Surveyor acts for a client under a
contract, in return for payment of a fee, the law will imply a term into that
contract to that effect, if none is expressed [1]. At the same time, the professional
relationship between the Surveyor and client also gives rise to a duty of care
in tort. Even where there is no contract, if the Surveyor knows or ought to
know that someone is relying on his advice or survey plan or information to
take decisions, he will owe that person a duty of care[2].
It is the first element that must be established to proceed with an action in negligence.
WHAT IS NEGLIGENCE?
Conduct that falls below the standards of
behavior established by law for the protection of others against unreasonable
risk of harm. A person has acted negligently if he or she has departed from the
conduct expected of a reasonably prudent person acting under similar circumstances.
As with many other
specialized professionals, land Surveyors can be sued for failing to meet a
specified duty. If a land Surveyor is under contract to perform a professional
service, and that service leads to injury, the victims of that injury are able
to sue for damages in a malpractice suit. Malpractice can also occur in this field when a land
surveyor participates in unethical conducts. Whatever the type of survey was provided, most surveyors negligence
claims will require some form of evidence from an independent surveyor.
BREACH OF DUTY
Of course not every
mistake will amount to a breach of the duty to exercise reasonable skill and
care. Even though a duty of care is owed, a Surveyor will not be liable for
losses unless it can be shown that he fell below the minimum standard expected
of reasonably competent Surveyors.
In addition to his
duty to his client or others to carry out his work with reasonable skill and
care, the Surveyor is bound by the rules of conduct of his profession and is
subject to his professional body's disciplinary proceedings for a breach of
those rules.
The claimant must be
able to show a duty of care imposed by law which the defendant has
breached. In turn, breaching a duty may subject an individual to liability.In order to make a
claim against a negligent surveyor then it is necessary to show that there is a
duty of care between the parties and that the negligent Surveyor has failed to
act with the degree of care and skill expected of a reasonably competent Surveyor, therefore leading to financial loss.
If
a land estimates are found to be inaccurate or unsatisfactorily completed, a
malpractice lawsuit may be filed. Additionally, if a land Surveyor surveys
property for a prospective buyer and carelessly defines that properties
boundary, they can also be held liable.
Professional negligence is in two forms.
i.
An error - something you did
wrong
ii.
An omission - something you failed to do
REASONABLE COMPETENCE
A Surveyor will
only be considered to be negligent if they have failed to act with the degree
of care and skill to be expected of a reasonably competent Surveyor. Examples
of professional negligence by Surveyors include:-
- Miscalculations
- Misrepresentations
- Use of wrong/fictitious coordinates
- Endorsing
a land in government acquisition as "Free from known government
acquisition", thereby misleading prospective buyers.
- Wrong orientation
- Wrong title and location
- Failure to inspect the property
properly
- Exaggeration of area/size of land
- Failure to make sufficient
enquiries
- Producing an inadequate or
defective report
- Failure
to carry out proper demarcations and pillar numbering before or after
preparation of survey plans.
- Honest or genuine mistakes-NTDA/Charting
office in Surveyor General Office.
- Backdating.
Whichever area of
surveying you are involved in, there is always a goal. But even with your level
of skill and preparation, in practice, for one reason or another, its not
always achievable. The risk of making mistakes is real and potentially very
damaging –for both you and your client.
Surveying requires
special skills, education, training or experience. If
a person engages in an activity requiring special skills such as piloting an
airplane, the standard by which his conduct is measured is the conduct of a
reasonably skilled, competent, and experienced person who is a qualified member
of the group authorized to engage in that activity.
In other words, the hypothetical reasonable person is a
skilled, competent, and experienced person who engages in the same activity.
Often persons practicing these special skills must be licensed, such as surveyors,
physicians, lawyers, architects, pilots, and drivers. Anyone who performs these
special skills, whether qualified or not, is held to the standards of conduct
of those properly qualified to do so, because the public relies on the special
expertise of those who engage in such activities. Thus, an unlicensed driver
who takes his friends for a joyride is held to the standard of conduct of an
experienced, licensed driver.
The law does not make a special allowance for beginners or
quacks with regard to special skills. The learner, beginner, or trainee in a
special skill is held to the standard of conduct of persons who are reasonably
skilled and experienced in the activity. Sometimes the beginner or quack is
held to a standard he cannot meet. For example, a first-time driver clearly
does not possess the experience and skill of an experienced driver. Although it
may seem unfair to hold the beginner or
quack to the standards of the more experienced person, this standard protects
the general public from the risk of a beginner's lack of competence, because
the community is usually defenseless to guard against such risks.
Professionalism is measured by the quality of services we
render to the public and not by self proclamation. The rules and regulations of
the profession are meant to protect the public from unsatisfactory services and
undue risks.Failure to raise the
standard of practice among ourselves has given quacks the reason to flourish
and prosper. Clients are not sophisticated to know the difference between a bad
survey(practice) and a good one. Our reluctance to educate ourselves on the dangers of
bad practice and enforce the rules and regulations has given Gov. Fashola the
chance to publish that notice on revocation of governor consents based on fraud
perpetrated on survey plans. If the Governor could do that without consulting
NIS or SURCON, does it mean that Government has lost confidence in our ability
to maintain standard of practice? The various penalties stated in the rules and
regulations are not punitive enough to discourage defaulters. When a
practitioner makes million of money from a professional misconduct, and when
he/she is to pay a fine of N100,000 only when found guilty. Naturally such
person is willing to break more rules to profit.
Most of the malpractices in cadastral are perpetrated by
people who are not qualified to do the job, who in turn give the jobs to
Surveyors to certify them. When things go wrong the Surveyor is held liable. Unfortunately many do not consider the bottom line: Integrity before profit!
Such people have flourished because of the laxity in enforcing the law and
sheer ignorance of those that give them such jobs.
Until we collectively discourage every form of quackery, unprofessional conducts, and sharp practices, the image of the profession will be far from redemption and many professionals will find it difficult to earn a decent living because the quacks are closer to land. Those who slumber on their rights lose them. Our technical standards and regulations, as they exist today, simply provide cover for bad practitioners who are able to break the law, damage the image of the profession,property rights and adversely affect the well-being of our citizens-with impunity. No other profession allows similar activity to go unpunished, and we wonder why we get no respect.
Surv. Folarin N.O
Lecture delivered on 6th November, 2013 at Association of Private Practising Surveyors of Nigeria (APPSN) meeting Lagos State Chapter, Nigeria.
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