Caution, Forethought, and Prudence – lessons from an English case

Hart v Large [2020] EWHC 985 is a recent English case. [1] The principles from the case can be given further thought within a New Zealand context, especially regarding the scope of duties for surveyors and assessment of damages.

Facts

In 2011, the Harts purchased a property worth £1.24m.[2] Originally, the property was a bungalow built in the 1920s/1930s and had been renovated by the previous owners, the Fitzsimons, before being put on the market.[3] The Harts engaged Mr Large to conduct a survey of the property. [4] Mr Large advised the Harts to select a HomeBuyer Report, a comparatively less detailed type of report. [5] The report presented two issues; one with drainage and one with pipes/gutters. [6] However, once the property was purchased, significant structural problems relating to water ingress and damp came to the fore.[7] These required significant remedial works.[8]

Litigation

The Harts claimed in negligence against:

  • Architects engaged by the previous owner;
  • The Hart’s conveyancing solicitor; and
  • Mr Large.

The claims against the architects and lawyers were settled out of court. The claim against Mr Large proceeded to court. The allegation against Mr Large was threefold – that he was negligent in:[9]

  • failing to recommend a full building survey
  • failing to advise of the issues of water ingress/damp in the HomeBuyer Report; and
  • failing to recommend the Harts to obtain a professional consultant’s certificate.

Result

With the first issue, the Court found in Mr Large’s favour. This meant that the Court regarded Mr Large as not being negligent when he advised the Harts to obtain the HomeBuyer Report.[10]

As to the second and third issues, the Court found in favour of the Harts. This meant that Mr Large was negligent in failing to one, advise of the water ingress/damp issues in the HomeBuyer Report.[11]

In other words, he should have advised of the limitations of his survey. And two, failing to recommend the Harts to obtain a professional consultant’s certificate.[12]

Damages/Assessment of Loss

The argument advanced on behalf of Mr Large was one in line with the Watts v Morrow [1991] 1 WLR 1421 approach.[13] Specifically, that damages should be assessed based on the degree to which the defects, that should have been addressed, would have reduced the property value below the £1.2m purchase price.[14] This argument was rejected. [15] The Court reasoned that if this was applied as the assessment of damages, it would not have put the Harts in the position they should have been in if they knew, through advice, that some risks were not assessable, and which would have resulted in a very low award of damages.[16]

The Court applied South Australian Asset Management Corp v York Montague Ltd Ltd [1996] 27 EG 125; [1997] 1 AC 191, HL, specifically Lord Hoffman’s judgment. The idea in applying this case was to state that when assessing damages, the starting point is considering the causes of action against the surveyor.[17] Here, one of Mr Large’s breaches of duty included failing to recommend to the Harts that they should have obtained a professional consultant’s certificate. The Court said that the assessment of damages was the difference in the property value with the reported defects, and the property value with all the defects.[18]

Lessons

The decision offers a reminder to surveyors, and potentially other related professionals, of the scope of one’s duty and ensuring customers are aware of it.

Prudence, caution, and forethought are the core lessons from this case.

Copyright Steve Keall, all rights reserved, 2020

Written by Bhavin Parshottam


[1] Hart v Large [2020] EWHC 985.

[2] At [5] and [28].

[3] At [15] and [29].

[4] At [34].

[5] At [34].

[6] At [55].

[7] At [99] to [101] and [160].

[8] At [99] to [107].

[9] At 60, 77, and 80.

[10] At [130].

[11] At [195]-[197].

[12] [206]-[214].

[13] Watts v Morrow [1991] 1 WLR 1421.

[14] At [238].

[15] At [239].

[16] At [247].

[17] At [239].

[18] At [254].

The Unsettling Settlement

Southern Response Earthquake Services Limited v Dodds [2020] NZCA 395 (7 September 2020) is a very recent decision of the Court of Appeal.

Background

The Dodds’ house sustained damage beyond economic repair in the February 2011 earthquake in Christchurch. [1] The Dodds’ had insured this house on a replacement basis with Southern Response Earthquake Services Ltd (SRES), who were previously known as AMI Insurance Ltd. [2] The insurance policy offered the Dodds’ several options to settle their claim. Out of the options, the Dodds’ chose to buy another house. Under the policy, SRES were to pay the cost of buying that other house to the extent of the cost of “rebuilding your house on its present site” [3] This cost was to be determined by an estimate of what the cost would be to rebuild the house on the present site.

Arrow International (Arrow) provided the Dodds’ with an Abridged Detailed Repair/Rebuild analysis (Abridged DRA), which stated a total figure of $895,937.78 for House & Outside EQC Scope (including GST). [4] SRES advised the Dodds that if they exercised the option to buy another house, the maximum amount available to them was $894,937. [6]

The Dodds discovered that a more comprehensive DRA (Complete DRA) had been prepared by Arrow and provided to SRES. [6] The Complete DRA indicated that SRES would incur additional costs of $205,000. [7] SRES neither disclosed the Complete DRA to the Dodds before settlement was reached nor did they tell the Dodds that the amount in the Abridged DRA excluded certain items of cost that SRES would incur if the house was rebuilt on its existing site. [8] SRES also did not explain why it considered that those items were not relevant when determining the maximum payable under the settlement option the Dodds chose. [9]

Litigation

The Dodds and St Martins Trustee Services Ltd sued SRES successfully in the High Court recovering the difference of approximately $205,000. [10] SRES were found to have been misleading and deceptive in settling the claim with the Dodds. [11]

SRES appealed the latter finding to the Court of Appeal. [12]

The issues on appeal were as follows: [13]

Misrepresentation

(a)    What representations (if any) did SRES make to the Dodds?

(b)   Were those representations false?

(c)    Were the Dodds induced to enter into the Settlement Agreement by those representations?

(d)   What damages are the Dodds entitled to under s 35 of the Contract and Commercial Law Act 2017 (CCLA)? Can the Dodds recover general damages for inconvenience and stress?

Fair Trading Act 1986 (FTA)

(e)    Did SRES engage in misleading and deceptive conduct in breach of s 9 of the FTA?

(f)     Did the Dodds suffer loss or damage because of any misleading conduct on the part of SRES?

(g)    What remedy should be awarded under s 43 of the FTA?

Breach of duty of good faith

(h)   Did SRES owe a duty of good faith to the Dodds in connection with the settling their claim?

(i)     If SRES owed a duty of good faith to the Dodds, was that duty breached?

(j)     What is the appropriate remedy in respect of any such breach?

In summary, although the Court of Appeal allowed SRES’s appeal in part and the damages awarded to the Dodds in the High Court were reduced, the Court found that SRES made misrepresentations to the Dodds about two things. One, its estimate of the cost of rebuilding the house. And two, the absence of any other report from Arrow that stipulated a different rebuild cost. [14] The Court affirmed that the Dodds’ loss was the difference between the true value of their rights under the policy and the sum they were persuaded to accept in exchange for surrendering these rights; a loss recoverable under both the CCLA and the FTA. [15]

Lessons

There are a few important lessons to be learnt from this case.

One, a reasonably held honest opinion by an insurer regarding the insured’s entitlement under a policy does not necessarily make the insurer liable for a claim in dishonesty or bad faith. If SRES had shown the Complete DRA to the Dodds, it would be unlikely for the Dodds to have a legal claim.

Two, the extent of the insurer’s duty to disclose information must be limited to the disclosure of material facts. This duty is not boundaryless.

Three, in terms of the duty of good faith, the Court commented that it is likely more productive to consider what obligations ae implied by law or that can be implied in fact in the context of particular dealings between the insurer and the insured. [16] The Court had recently affirmed this approach in Taylor v Asteron Life Ltd. [17]

Copyright Steve Keall, all rights reserved, 2020

Written by Bhavin Parshottam

[1] Southern Response Earthquake Services Limited v Dodds [2020] NZCA 395 (7 September 2002) at [1].

[2] At [1].

[3] At [1].

[4] At [2].

[5] At [2].

[6] At [4].

[7] At [4].

[8] At [4].

[9] At [4].

[10] At [6].

[11] At [6].

[12] At [8].

[13] At [107].

[14] At [9].

[15] At [10].

[16] At [194].

[16] Taylor v Asteron Life Ltd [2020] NZCA 354.