Home Reports and the Extent of a Surveyor’s Duty of Care – Comino Properties Ltd v DHKK Ltd

The recent Sheriff Court decision in Comino Properties Ltd v DHKK Ltd [2025] SC EDI 78 provides timely clarification as to the legal and evidential standard required to establish a claim where a buyer, relying on a Home Report provided by a seller, seeks to bring an action against the surveyor who prepared that report.

The facts in brief

Comino Properties Ltd (“the Pursuer”) had purchased a residential property in Edinburgh. DHKK Ltd (“the Defender”) is a firm of chartered surveyors. The Defender had prepared a prescribed survey report, commonly known as a single survey, which formed part of the seller’s Home Report. After purchasing the property, a structural engineer instructed by the Pursuer discovered serious structural defects in the property which required repair.

The Pursuer claimed that the Home Report had been negligently prepared by the Defender, and sought to recover the cost of repairs and lost rental revenue from the Defender, relying on Article 3 of the Housing (Scotland) Act 2006 (Consequential Provisions) Order 2008 (“Article 3”).

Article 3 provides a third-party buyer with a statutory right to damages against the party who prepared a prescribed survey report, if the buyer relied on that survey and suffered material loss because it had not been prepared with “reasonable skill and care”.

The Defender sought dismissal of the case on the basis that no relevant (legally valid) claim was pled, with reference to the recognised test for professional negligence, and that the Pursuer had produced no expert report in support of its claim.

The Court’s approach

The Sheriff agreed with the Defender’s submission that the need for “reasonable skill and care” within Article 3 imported the usual common law standard of professional negligence, and that the recognised test set out in the case of Hunter v Hanley would have to be satisfied.

To establish that a Defender has been negligent under the Hunter v Hanley test, a Pursuer generally requires to aver and prove: (1) that there is a usual and normal practice; (2) that the Defender has departed from that practice; and (3) that no “professional man” – in this case no chartered surveyor – of ordinary skill acting with ordinary care would have adopted the Defender’s practice. The Pursuer in this case had not incorporated any pleadings addressing the usual and normal practice of a surveyor, nor had it set out a departure from this practice which no chartered surveyor of ordinary skill acting with ordinary care would have done.

The Sheriff did accept the Pursuer’s argument that it did not necessarily have to prove a lack of reasonable skill and care to the usual Hunter v Hanley standard, since there may be cases where the negligence of the professional carrying out the survey is so obvious or falls outside the exercise of professional skill and judgement, such that proof is not required. However, this remains a narrow exception. In this case, the chartered surveyor was exercising a core function of his professional role in preparing the survey and the Sheriff considered that the “error” averred by the Pursuer was not so manifest that it would be considered “obvious” to the extent that no submissions addressing the common law test would be required.

The Sheriff made clear that just because a civil engineer observed certain defects which they considered “obvious” does not mean that a chartered surveyor ought to have noticed the same defects. He highlighted the distinction between the functions and purpose of each profession. The Defender’s assessment may or may not have been accurate, but it does not follow that it was negligent. The Sheriff ruled that the Hunter v Hanley test would need to be satisfied, and that the Pursuer’s pleadings “[did] not come close to establishing a relevant case that the Defender was negligent”. The action was consequently dismissed.

Key takeaways

• The decision in this case will provide some comfort to surveyors, since parties seeking to bring a claim under Article 3 must still address the common law standards of professional negligence. The statutory nature of the right to damages does not shortcut the usual Hunter v Hanley The expertise of a structural engineer does not equate to that of a chartered surveyor, and the findings of an individual in one profession do not prove the negligence of an individual in a different profession.
• Nevertheless, surveyors should treat all reports as documents which may later be scrutinised in court, and efforts should be made to preserve contemporaneous evidence (such as dated notes and photographs) which might evidence inspection constraints.
• There remains a clear expectation from the courts that expert evidence is led in all but the clearest cases of “obvious” error. Potentially “obvious” examples provided included surveying the wrong house, or not noticing a roof was missing. The need for expert evidence in every claim was explored further in Cockburn v Hope.

Beale & Co have extensive experience advising on complex professional negligence claims. If you have any questions regarding the issues covered in this article or wish to understand how these apply to your contracts or business practices, please contact Lindsay Ogunyemi and Jamie Harris.