Introduction - Building Contract Claims - page 14

compliance with the building contract terms in itself becomes an important
part of his contractual duty to the employer. But he will also now have a
duty to the employer to act fairly to the parties.
In part that duty arises through the insertion of his name in the appropri-
ate space in the articles of agreement to the building contract where, in
effect, employer and contractor together agree that the person so named
shall carry out the duties assigned to the quantity surveyor under the
contract. If the quantity surveyor fails to carry out those functions in accord-
ance with those terms, the employer may be liable to the contractor for that
failure as a breach of a contractual undertaking - he will have failed to
procure his quantity surveyor to carry out those functions properly. The
quantity surveyor is not a party to the contract, no more than is the architect.
In addition to these contractual duties, the quantity surveyor may also
owe a duty of care, in the exercise of his professional skills, to others in the
building process. Usually this will be where it can be shown that a party
relied on the quantity surveyor to exercise reasonable care and skill 37 - that
is, not only the main contractor, but also nominated sub-contractors
and anyone who may suffer damage as a direct result of the quantity
surveyor's breach of duty. For instance, where it is a part of the
quantity surveyor's duties to value work executed for the purpose of in-
terim payment, a contractor who suffers damage through negligent under-
valuation may be entitled to take legal action against the quantity surveyor
for negligent misstatement in a similar way to an employer damaged by
negligent overvaluation would be entitled to take action in contract and/or
in tort. Action against the quantity surveyor by anyone other than his client
is virtually unknown at present, but recent developments in the law point to
the possibility of actions of this kind 38 . The remarks in section 1.4 earlier are
relevant.
The quantity surveyor's duty is to carry out the functions ascribed to him
under the building contract in strict accordance with the terms of that
contract. Under clause 26 of JCT 98, for instance, it is the quantity surveyor's
duty, if so instructed by the architect, to 'ascertain' the amount of direct loss
and/or expense which has been or is being incurred by the contractor as a
result of the regular progress of the works or any part of them having been
'materially affected' by one or more of the factors listed in clause 26.2 - the
architect having already formed the opinion that regular progress of the
works has been or is likely to be so affected. It is therefore his duty to find
out the actual amount of loss and/or expense incurred by the contractor as a
direct result of the effect upon regular progress. It is certainly his duty to
ensure that the employer pays no more than the actual amount of loss and/
or expense directly and properly incurred by the contractor; but it is equally
his duty to ensure that the contractor recovers no less. It is most emphatic-
ally not his duty to deprive the contractor of amounts properly recoverable
under the contract, nor can it ever be interpreted as part of his contractual or

37 Hedley Byrne & Co v. Heller & Partners Ltd [1964] AC 465.
38

See John Cartwright, Liability in negligence: new directions or old, (1997) 13 Const LJ 157.