INTRODUCTION
In our day-to-day lives we all rely on professionals
such as doctors, accountants, lawyers, surveyors, contractors, engineers and
others to provide us with services and give us expert advice on how to handle
certain situations. Such professionals generally are hired based on their
expertise in a certain field and are expected to perform their duty with an appropriate level of skill and
within a reasonable skill.
Professionals are held to a higher standard of performance because they present
themselves as more highly trained. Sometimes a professional fails to meet
certain standards of care and you suffer a loss as a result; this is
professional negligence and the professional may be liable for your losses.
When they make errors,
the nature of the error can be very costly for a client; a doctor may kill a
patient with negligence, a lawyer may fail to achieve the right outcome in a
case, a contractor could build a house which falls down. If a land surveyor is under contract to perform a professional
service, and that service leads to injury, the victims of that injury can sue
for damages in a malpractice suit.
All
professionals owe their clients a duty of care. A duty of care is a legal obligation which is imposed on an individual requiring
adherence to standard of reasonable care while performing any acts that could
foreseeably harm others.
Under the law,
professionals have a duty of care to the people
who hire them, because people are relying on their skills and expecting them to
exercise reasonable caution.
When 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. At the same time, the professional relationship
between the surveyor and client also gives rise to a duty of care. Even where there is no contract, if the
surveyor knows or ought to know that someone is relying on his or her advice,
survey plan or information to take decisions, he or she will owe that person a
duty of care.
Regardless
of the profession that an individual practices, each should understand the
effect of today’s action on the future. It has been imposed on surveyors the
certainty that they may be liable for cost resulting from professional
negligence.
CONSEQUENCES
OF NEGLIGENCE OR MISTAKES
Pilots
die by their mistakes, Doctors go to jail for their mistakes. A defective 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. Surveyors provide important
services to individuals, governments and other professionals when it comes to
accurate measurements, definition and demarcations of boundaries and other key
features of a piece of land. 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.
Claims against surveyors are usually made in cases
where the duties of a surveyor were not properly carried out. Claims against surveyors for professional
negligence reflect the importance of a professional survey. If a surveyor is negligent, the
effects of this negligence could mean financial loss to their clients and
troubles to the public, ultimately influencing what the public think about the
profession. Making claims against
surveyors for professional negligence compensation is one of the legal options
available if a surveyor employed has been negligent in their professional
duties.
WHAT
IS 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’. 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. Surveyors owe a duty of care to the public and of course
to the profession.
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.
It is the duty of a land
surveyor in his (her) profession to use that degree of knowledge, skill, and
care ordinarily possessed and used by members of that profession, and to
perform any service undertaken as a land surveyor, in a manner that a
reasonably prudent land surveyor would use under the same or similar
circumstance.12
SURVEYORS’ 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.
WHAT
IS BREACH OF DUTY?
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.
More specifically, to recover in an action
for professional negligence, the plaintiff has the burden of proving: (1) the standard of care within the profession;
(2) the defendant’s failure to adhere to the professional standards; and (3)
that the defendant’s failure to adhere to the professional standards
proximately caused harm to the plaintiff.4
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.
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.
WHAT IS STANDARD OF CARE?
Surveyors are expected to perform with the
same degree of care and skill exercised by others in the profession in the same
area of expertise.
By virtue of Surveyors Council of Nigeria’s
registration, surveyors are not restricted in the areas in which they may
practice. A surveyor in general practice may consider other areas of first
order control, topographic mapping, GPS, utility surveys, forensic surveys and
property surveys are all covered under the umbrella of a registration or
license. This may be so, but once a surveyor undertakes any project within any
area of surveying, the court will assume that that surveyor will exhibit that
degree of skill, care and ability that a surveyor who practices daily in that
area possesses.
When a surveyor’s work is questioned, a court
will require testimony of an expert in that particular field to inform the
court of the standard of care. In claiming damages against a surveyor, it is
proper to introduce evidence and
testimony from other surveyors about what an ordinary skilled surveyor
prudently does. Taking the exercise of proper care and skill a step further, it may
be said that the standard expected of any professional is that of “due
diligence”
PROFESSIONAL NEGLIGENCE
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
but not limited to:-
- Miscalculations
- Misrepresentation
- Use of
defective/fictitious coordinates
- Endorsing
a land in government acquisition as free from known government
acquisition, thereby misleading prospective buyers.
- Defective
orientation
- Defective 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 mistakes
- 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, it’s 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.
SURVEYOR’S
OBLIGATIONS TO THE CLIENT
The surveyor, when
performing a given service for a client, assumes certain ethical obligations in
addition to liabilities. But these
obligations to the client may not supersede or interfere with the surveyor’s
obligations to associates or to the public. He or she should serve clients
faithfully but should refuse to do that which is illegal and unethical and that
which violates a duty of responsibility to others. The surveyor advises clients
about what is right and proper. However, if a client insists otherwise, the
surveyor must withdraw, with notification being given to the client in writing.
Regardless of the fee charged, the
surveyor is obligated to perform a correct survey.
Communications between the
surveyor and clients are confidential and should remain so. But the surveyor
may not be party to an illegal act or fraud and communications concerning
illegal acts or fraud are not confidential.
SURVEYOR’S
OBLIGATIONS TO THE PUBLIC
The surveyor has the
following obligations to the public
Ø To
see that client’s boundaries are properly monumented without subtracting from
the rights of the adjoining land owner.
Ø Not to initiate boundary disputes.
Ø Not
to aid in unauthorized surveying practice.
Ø To
see that those who prove unworthy of their privileges have those privileges
deprived.
Ø To
produce a quality product/survey regardless of price.
Ø To
protect the public against foreseeable risks
SURVEYOR’S OBLIGATIONS TO OTHER SURVEYORS AND
THE PROFESSION.
Surveyors not only have obligations to one another but
also to the profession as a whole. In the event a surveyor discovers an error or disagrees with the
work of another surveyor, it is the duty of that surveyor to inform the other
surveyor of such fact.
In general, surveyors should not criticize another’s work in public or become associated with other surveyors who do not conform to ethical
practices. They should cooperate with other surveyors concerning
information of mutual interest of benefit and support their professional
organizations.
CONCLUSIONS
The
practice of land surveying as a learned profession should be to safeguard life,
health, and property and to promote the public welfare, its practitioners in
can be held accountable to the profession and members of the public by high professional
standards in keeping with the ethics and practices of the other learned
professions. If you have accepted an assignment as a
surveyor, know that your profession needs you and you are rendering a valuable
service to the public as well. Professionalism is measured by the quality of services rendered 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.
A
client employs a land surveyor to obtain a certain level of expertise. For the
surveyor, there is only one rule: Bring to the client the level of expertise
expected. There are no such surveys as good and poor surveys, only adequate
surveys that purport to do the job that was intended. Surveyors who foresee
possible problems with surveys can be a valuable asset to their clients and can
stay out of troubles. As with many other specialized professionals, it must
be emphasized that surveyors can be sued for failing to meet a specified duty
and a client has a tendency to sue surveyor.Therefore, we must conduct our business and professional practice defensively, as
if we will be going to court on every project that will turn out and that every
survey plan is a litigious element because it is a registrable instrument.
As
a professional land surveyor, you can and should know more about the law as it
affects your daily practice. All professional land surveyors should keep in
mind that licensing statutes are for the protection of the public’s welfare and
professional exist to serve the public, not themselves.
REFERENCES
1.Robillard, Walter G., Wilson, Donald and
Brown, Curtis, Evidence and Procedures for Boundary Location, Fifth Edition
2. Robillard, Walter G., Wilson, Donald A. and
Brown, Curtis M., Brown’s Boundary Control and Legal Principles, Fifth Edition
3. Traversing the Law-Testifying in Court, Jeff Lucas.POB magazine
4. Traversing the law: Does a mistake constitute negligence? Jeff Lucas.POB
magazine
7. The Free Diction by Farlex. http://legal-dictionary.thefreedictionary.com/negligence.
ABOUT
THE AUTHOR
Folarin Noah is a
Registered Surveyor in private practice in Lagos. He dedicates his time to
provide solutions to real property needs of landowners and continuing education
to clients and professional service providers in land matters as it relates to surveying.
Email address:follynoa@yahoo.co.uk, mobile: +2348037046468
