Negligence (Lat. negligentia, from neglegere, to neglect; it is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The idea of negligence is that people should exercise special care when they act by taking account of potential harm they will cause to another person. In the WordWeb Dictionary (2017), professional negligence is defined as a “failure to act with prudence that a reasonable person would exercise under the same circumstance; the trait of neglecting responsibilities and lack of concern for something”. Although negligence is not a deliberate act by a person to inflict injury on another but occurs as a result of laxity on the part of the person. In professional practice, it is the act of omission or commission made by a professional which results in injury of the client or a third party. Professional negligence arises from the errors of omission or commission or lack of necessary care in the discharge of the duties and assignment of a profession. This occurs as a result of the existence of a ‘duty of care’ which the Estate Surveyors and Valuers have to exercise in discharging his/her professional duty. Therefore, negligence is as a result of breach of such duty of care which may result in injury of the second or third party. There is the need for a professional to exercise special care in the course of discharging his professional duties, as professional practice from its nature demands special skill, ability and experience.
The Estate Surveyor and Valuer being a professional owes his client a duty of care and is expected to exercise a special care and professionalism in the course of discharging his/her duty to the public in order to ensure that his client does not suffer any avoidable loss due to his negligence. For example, some Estate Surveyors and Valuers in the cause of discharging their professional duties, commit some errors and may overlook it feeling it matter’s little, whereas it matters a lot and may cause damage or problems to parties involved. Failure of the professional Estate Surveyor and Valuer to utilize the skill and experience which he had acquired over the years or exercise the necessary degree of care and meticulousness demanded from him amounts to breach of contractual duty which is tantamount to professional negligence. Professional negligence can be viewed in the following two ways:
- Duty of care in professional negligence: There has been various interpretation of the duty of care owned by a professional. Before a duty of care can exist, there must be a formal relationship between the people involved. However, it is only the law that can determine the extent the Surveyor and Valuer owes his client, and whether or not an act of negligence has occurred in the discharge of these duties.
- Tort of professional negligence: Negligence is a specified tort in which damage or injury occurs. Its application is wide compared to other torts in this category. This is because of the various circumstances in which the law exacts a professional to exert his duty of care. This injury is usually economic loss; the after effect of negligence is not usually distinct. It may occur after the execution of a contract.
Acts that constitute professional negligence
- Failure on the part of the Estate Surveyors and Valuers to exercise due diligence and care in arriving at or determining the value of the property.
- Negligence arises when the Estate Surveyors and Valuers do not inspect the subject property for valuation but rely on the information given to them in determining the value of the property.
- Adopting the wrong valuation method in computing the value of the property.
- Misinterpretation of fact as regards description of property for sale or lease whereby people are made to believe what is not true.
- Not taking a comprehensive inventory report when a tenant is taking possession of a property, with the negative consequences that there will not be basis for comparison of the facilities available in the property at determination or expiration of any existing lease.
- Lack of proper execution of lease agreement by both tenant and landlord, and the Estate Surveyors and Valuers failed to act thereby compromising the interest of his client.
Effect of professional negligence
- Negligence usually causes partial or permanent loss of properties, life, equipments or even loss of capital invested or to be recouped from the investment.
- Wrong representation of figures during the valuation exercise of a property as a result of negligence on the part of the Estate Surveyors and Valuers.
- Negligence in the sense of preparing feasibility report could cause the investor to incur a total loss of his capital and non-actualisation of his investment goals.
Penalties for act of professional negligence
Due to the level of injury that the person affected by the professional negligence suffers, the National Council of the Nigerian Institution of Estate Surveyors and Valuers has put in place penalties for the act of professional negligence. These penalties are stated under the various sections of the Estate Surveyor and Valuer Registration Act. Some of them include:
- Expulsion of the Estate Surveyors and Valuers from further practicing the profession by revoking their seals.
- Reprimand by the Professional Practice Committee.
- Seizure of the assets of the Estate Surveyors and Valuers to compensate the injured for his loss or damages.
- Suspension of Estate Surveyors and Valuers.
The means for resolving cases of negligence depends on the magnitude of negligence and the damage caused as a result of it. Some ways in which negligence can be resolved includes:
- Through court
- Through arbitration
- The professional practice committee
- Negligence can also resolved through an agreement between the parties
The various ways by which professional negligence could be avoided are:
- The professional should handle his/her work professionally. The brief being given by the client should be handled with expertise.
- The Estate Surveyor and Valuer should exercise standard of care in carrying out professional task. He should follow client instruction and carry out his professional job competently.
- No one is an island on his own; therefore, the professional should seek professional advice from his colleagues and could even ask for their opinion and suggestions in other to avoid mistakes from happening.
- In executing his client brief, the professional must be cautious in everything he does.
- Professional should ensure proper documentation of all documents where two parties are involved in a contractual agreement in case of any dispute which might arise in the future.
- NIESV should regularly organise continuous professional developmental programmes and workshops which can be a forum where cases of negligence are thoroughly discussed. They should also, make it mandatory that all Valuers attend the forum or conferences.
- There should also be regular visitation of Estate offices and strict monitoring of their activities by Professional Practice Committee members.
