Building Surveyor Negligence and Liability in Victoria

In Building Law in Victoria claims against private building surveyors are often thrown around.

However, when looking into the case law in this area, there are surprisingly few reported negligence cases against building surveyors in Victoria.

Those that have been decided provide a useful insight into where surveyors can be exposed to liability and where claimants can be successful.

Moorabool Shire Council v Taitapanui [2006] VSCA 30 - 14 VR 55

In this case the Court of Appeal confirmed that a building surveyor exercising statutory functions can owe a duty of care to subsequent purchasers, not just an original owner.

This case established that negligent performance of statutory functions, including the issue of building permits, can give rise to liability where loss is reasonably foreseeable.

Owners Corporation No 1 PS613436T v LU Simon Builders Pty Ltd (Lacrosse)

This is a landmark Victorian authority on building surveyor liability.

The Relevant Building Surveyor was found to have:

• issued a building permit approving the use of combustible aluminium composite cladding;

• failed to properly assess whether the proposed alternative solution complied;

• relied too heavily on the opinions of the fire engineer without independently assessing compliance; and

• approved the design despite the statutory obligation to be satisfied that the building work complied with the Building Act and the Building Code of Australia.

The Tribunal found that the surveyor had failed to exercise reasonable care and skill in carrying out its statutory role.

Tanah Merah Vic Pty Ltd v Owners Corporation No 1 PS613436T [2021] VSCA 72

The Court of Appeal substantially upheld the Trubunal findings.

The Court reinforced that a building surveyor cannot simply act as an administrative tick box process.

Before issuing a building permit, the surveyor must independently satisfy themselves that the proposed building work complies with the Building Act and the Code.

The common risk thread for surveyors through these decisions is that building surveyors are not necessarily required to find hidden defects. Rather, failing to properly exercise independent professional judgment when performing their statutory functions is key.

Whilst there are limited decisions on surveyor negligence the Building Appeals Board decisions can also help to outline the type of conduct issues surveyors face, particularly in regard to protection works notices, building orders and notices. Whilst these are not negligence cases per se, they contain numerous examples of surveyors being criticised for issuing permits without adequate documentation, failing to administer protection works correctly, or failing to ensure compliance before issuing permits and conduct that may later form negligence claims.

So - Don’t assume that because a surveyor says something is right that is definitely so!

But also, don’t assume because there are defects the surveyor is liable!

This article is a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Tagged as:

• professional liability
• building law
• litigation
• building disputes