The Danish Supreme Court decides against previous case law: Photographs can now provide basis for survey reports
Concordant with previous case law, the Danish Western High Court found that photographs could not provide basis for a survey report unless special circumstances were present. The Danish Supreme Court overruled the Danish Western High Court and decided that the photographs depicted facts and for that reason the photographs could be submitted to the surveyor.
IUNO has previously published a newsletter concerning the judgment of the Danish Western High Court. The Western High Court did not permit the owner to submit the photographs to the surveyor. The question was subsequently appealed to the Supreme Court who reversed the decision.
During the legal proceedings before the Supreme Court, the owner argued that submission of evidence should not be rejected unless it may be excluded in advance that the evidence will have impact on the outcome of the case. Furthermore, the owner argued that in general the contractor will also have quality assurance documents which may also be submitted to the surveyor.
The contractor argued that generally surveys must be based on a physical inspection of the defects. Surveys based on photographs are only permitted if special circumstances are present. The contractor held that such circumstances were not present because the owner had not proved that it had been necessary to repair the defects before a survey could be conducted.
The Supreme Court stated that in general a party is not prevented from submitting photographs which only depict actual conditions. In this case no information about the photographs gave reason to depart from this principle.
Initially, the Supreme Court noted that the submitted photographs depicted actual conditions. Furthermore, the Supreme Court found that it was without importance that the photographs had been taken after the owner took legal action. In that connection, the Supreme Court emphasized that the contractor had the possibility to contest the validity and the probative value of the photographs in connection with the drafting of the survey report theme and in the subsequent procedure.
The judgment shows that photographs can provide basis for a survey report as long as they only depict actual conditions. However, the Supreme Court did not specifically decide on the probative value of the photographs, but emphasized that the contractor subsequently had the possibility of contesting the probative value of the photographs.
With this judgment the Supreme Court decided against previous case law concerning surveys. The Supreme Court now permits a more extensive access to include photographs in a survey. However, it must be assumed that it is a condition that the other side is allowed to contest the photographs and the probative value of these in the survey and the subsequent court case. Whether or not the photographs are sufficient will depend on the court’s usual assessment of evidence.
Despite the judgment, we still recommend that surveys are conducted before defects are repaired since the burden of proof lies with the owner who relies upon the defects. Consequently, the owner bears the risk if the surveyor cannot reach a conclusion about the conditions as illustrated on the photographs. Furthermore, the owner bears the risk whether the court finds that the photographs is a true depiction of actual conditions.
In a situation where one is compelled to repair defects before a survey is conducted, it is a good idea to inform the other side that the survey will be conducted on the basis of photographs and possibly let the other side be present when the photographs are taken. It is important to do as much as possible to ensure that the photographs have a sufficient probative value.
[Judgment of the Danish Supreme Court 16 November 2013]