Cases - Bourne v McEvoy Timber Preservation Ltd
Record details
- Name
- Bourne v McEvoy Timber Preservation Ltd
- Date
- (1975)
- Citation
- 237 EG 496
- Legislation
- Keywords
- Negligence in valuations and surveys
- Summary
-
The claimant 'B' wished to purchase a property and approached a bank to secure a loan. The bank engaged a surveyor who identified a number of risks with the structure of the property. The bank wrote to B informing him that they would provide a loan on terms that B:
- engaged an expert to report on timber rot and work infestation; and
- carried out any works recommended therein.
B and the vendors of the property agreed that they would share the costs of any required work. The vendors then instructed the defendant 'M', who were experts in the remedial treatment of timber, to inspect the property and quote. M reported on the rot and gave an estimate for the work which was then effected. B's solicitors were aware of the report but it was not shown to B and the contract remained between the vendors and M only. It transpired that the rot was in fact much worse than identified by M. B sued in negligence. M defended on the ground that they did not owe a duty of care to B as there was no contract between them and their relationship lacked sufficient proximity for an independent duty in tort to arise.
The judge approached the matter on the basis of case law requiring there to have been an assumption of responsibility from M towards B notwithstanding the lack of a contractual relationship. He held that M knew of B and why the report was being asked for. M knew that B would probably rely on it and there was therefore sufficient proximity between the parties such that a duty of care arose. On the facts, however, it would have been very difficult for M to have identified the existence of the undetected dry rot during the course of its inspection. It was in and of the nature of dry rot that it was difficult to spot. There was therefore no breach of duty.
This case confirmed the assumption of responsibility test for the imposition of a duty of care towards non-contractual third parties.
Valuers should be aware that they may owe duties to third parties in circumstances where they are aware of the purpose of their report and in particular that it may be relied upon by that third party. This may be the case, even if they do not know and have not met the third party.