This material covers the basic concept of defective construction work, patent & latent defects, and how to properly describe the building defects

1. BS CPD Talk Series
13 Feb 2014
Defective Construction Work
CPD POINT(S):
BS RISM: 4
Adi Irfan Che Ani
LPhyD UKM

2. DEFINITION OF ‘DEFECT’
• Defects is the non-fulfilment of intended usage requirements
(Josephson & Hammarlund 1999).
• ‘A lack or absence of something essential to completeness’ Tate v. Latham & Son (1897).
• ‘Anything which renders the plant’ in an item of plant Yarmouth v. France (1897).
• ‘An imperfection or shortcoming’ - Black’s Law Dictionary (7th
edition).
• In context of building work, ‘defect’ is something that ‘does
not conform to the agreed specification’

3. DEFINITION OF ‘DEFECT’: Terminology
• Disconformity
• Non-conformity
• Non-compliance
• Incomplete
• Temporary disconformity (pre-completion defects):
defects before completion

4. Illustration (Barrett, 2008; page 2):
The insufficiency of the pool’s depth meant that it did not
conform to the specification. The builder was
contractually obliged to achieve the requirements of the
specification.
As he had not done so, he had breached his contract with
the owner.
So, in the context of building work, a more useful definition
of the term “defect” is simply to say that something that
does not conform to the agreed specification is
DEFECTIVE.

6. It wasn’t hit by the massive earthquake. In true fashion of the
Ripley Legacy, it was built to reflect the odd 1812
earthquake that measured 8.0 on the rick. The building has
now become one of the most photographed in the world.

7. QUALITATIVE DEFECTS
3 Categories:
• work (including design) or materials not of acceptable
quality;
• work (including design) or materials that are in
themselves of acceptable quality, but do not confirm
with specification or the design brief;
• work that is incomplete.

8. QUALITATIVE DEFECTS
Defects falling into any of these 3
categories: provide ground for
the purchaser/owner to claim
againts some or all of project
team
Alasan penghakiman Rosdi vs Coopas (2012)

9. PATENT/ LATENT DEFECTS
Defect is patent if ;
• Open or visible to the eye;
• Observable, whether or not actually observed.

10. PATENT/ LATENT DEFECTS
The scenario of – physically looks in good condition
but truly there are many hiding problems; and
Defects normally shows their symptoms before getting
worst.

11. Growth of mould and algae due to
water ponding and continuous
dampness
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Water ponding due to blockage of
outlet to rainwater downpipe (due
to small outlet) – it’s very hot
during the course of inspection

12. PATENT/ LATENT DEFECTS
Defect is latent if ;
• Hidden; Not observable;
• Concealed flaw which is an actual defect in the
workmanship or design;
• ‘Failure in work or materials to confirm to contract in a
respect not apparent on reasonable examination’ – in
Rotherham (1996)

13. PATENT/ LATENT DEFECTS
• Therefore, it is important to;
uncover all defects as early as possible (during DLP
especially)
AS TO MINIMIZE LATENT defects
“The defects were not latent if discoverable by the
exercise of due diligence” (Barrett, 2008; page 3)

14. Fundamental Importance of defects
• Affect the value of work done (obligation to pay & right to
receive payment)
• Prevent work being regarded as complete
• Entitle purchaser to compensation
• Entitle purchaser to terminate building contract or
appointment of consultant
• Patent or latent may sometimes be relevant to the
commencement of the relevant limitation period e.g. to
prove the defects originates during DLP.

15. Very often, more than 1 cause may be associated with the
defect; and
Normally happen if the defect is not attended over a period
of time i.e. fine crack in the concrete flat roof (as a start).
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17. How many faces can you find?
To test your intelligence:
1.
2.
3.
4.
5.
If can find 0 – 5 faces – idiot
If can find 6 – 7 faces – stupid
If can find 8 – 9 faces – normal
If can find 10 – 11 – very normal
If can find 12 – 13 faces –genius

18. NO CONTRACT: TORT or RESTITUTION
• Building work may be carried out in circumstances
where the parties have not entered into a contract. i.e.
May be supplied even though
the applicable terms of
contract have not been
considered at all or agreement
has not been reached
May be supplied pursuant to a
letter of intent or in excess of
the stipulated financial
authority or scope of work
Work & materials
May be supplied outside the
contractual scope of work
May be supplied by uninvited
stranger

19. RESTITUTION
• Restitution - Claims for payment for work done in the
absence of a contract (quasi contractual).
• Basis of restitution claims is that of unjust enrichment.
• Unjust enrichment occurs when the recipient/the
owner/purchaser:
avoid payment; or
limit the sum payable.

20. Tribunal report: sample

21. RESTITUTION AND DEFECTS
• Badly done building work may confer little or no benefit
upon the recipient.
• Thus, a restitution claim should not permit the supplier to
benefit financially.
• The reasonable sum payable by the recipient ought to
reflect the resultant absence or reduction of benefit.
• Deduction should be made according to 'cost plus' for
time spent repairing or repeating defective work.

22. THE STANDARD OF WORK
• Difficulty (no standard of work) if a contract has not
eventuated.
• Standard is ‘complying the request’.
• The relevant standards should refer to the term of the
request.
• Construction industry should understand the customers'
needs and meet their needs (Boyd & Chinyio 2006).
• To determine standard; circumstances & context e.g. work
carried out in high-quality premise may require high quality
material & finishes

23. THE STANDARD
OF WORK
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24. THE STANDARD OF WORK
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25. THE STANDARD OF WORK
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26. THE STANDARD OF WORK
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27. THE STANDARD OF
WORK
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28. THE
STANDARD OF
WORK
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29. THE ‘USUAL STANDARDS’
• The usual standards would apply in the absence of a
specification (e.g. construct a new roof, build a fence
etc)
• The design & work would have to be a
Reasonably good quality.
Reasonably fit for its purpose.

30. THE STANDARD OF WORK
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31. THE STANDARD OF WORK
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32. THE ‘USUAL STANDARDS’
• A tribunal dealing with a restitution claim;
Builders must supply materials and workmanship in
conformity with the statutory requirements (where
there is no contract) i.e. Act 133, UBBL, etc (QLASSIC
is not statutory); and compliance to safety & health

33. THE STANDARD OF WORK: UBBL (not “usual standard”)

34. Information about crack inspection (BRE Digest 251)
Category of
Damage
Degree (1)
of damage
Description of typical damage
Ease of repair in italic type
Approximate
crack width mm
0
Negligible
Up to 0.1(2)
1
Very slight
2
Slight
Hairline cracks of less than about 0.1mm width are classed as
negligible.
Fine cracks which can easily be treated during normal decoration.
Perhaps isolated slight fracturing in building. Cracks rarely visible
in external brickwork.
Cracks easily filled. Redecoration probably required. Recurrent
cracks can masked by suitable linings. Cracks not necessarily
visible externally; some external repointing may be required to
ensure weathertightness. Doors and windows may stick slightly.
3
Moderate
The cracks require some opening up and can be patched by a
mason. Repointing of external brickwork and possibly a small
amount of brickwork to be replaced. Doors and windows sticking.
Service pipes may fracture. Weathertightness often impaired.
5 to 15(2) (or a
number of cracks
up to 3)
4
Severe
15 to 25(2) but also
depends on number
of cracks
5
Very severe
Extensive repair work involving breaking-out and replacing
sections of walls, especially over doors and windows. Window
and door frames distorted, floor sloping noticeably(3). Walls
leaning(3) or bulging noticeably, some loss of bearing in beams.
Service pipes disrupted.
This requires a major repair job involving partial or complete
rebuilding. Beams lose bearing, walls lean badly and require
shoring. Windows broken with distortion, danger of instability.
Up to 1(2)
Up to 5(2)
Usually greater than
25(2) but depends
on number of
cracks
Source: Dickinson & Thornton (2006). Cracking & Building Movement. Coventry: RICS Books

35. FITNESS FOR PURPOSE
• Fitness of purpose difficult to justify in the absence of a
contract.
• Building work should be in a ‘workmanlike manner’ –
‘reasonable care and skill’.
• The design (construction) should be fit for purpose.

36. THE STANDARD OF WORK
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37. THE STANDARD OF WORK
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38. FAILURE TO COMPLETE
• Builders do not carry out and completed all of the work
that the request envisaged.
• Sometimes, work which up to standard cannot be used
because other work was not done or was not up to
standard.
• Incomplete work may have a detrimental impact on the
value of completed work. (Tribunal Report – Ang)

39. LATENT DEFECTS (after restitution)
• Latent defects may subsequently manifest themselves long
after restitution has been made.
• This situation resulted in declining real estate values (Yiu
2007).
• The opportunity to set off against, or to otherwise adjust, the
reasonable sum is lost.
• The tort of negligence is the obvious route to a remedy for
defective work that causes physical harm – and indeed, in
appropriate circumstances, economic-harm.
• The payer/purchaser/owner can claim back all or part of the
money paid over on the basis that it was paid under mistake
of fact.

40. REFERENCES & BIBLIOGRAPHY:
• Barrett, K. 2008. Defective Construction Work. United Kingdom: Wiley-Blackwell.
• Boyd, D. & Chinyio, E. 2006. Understanding the Construction Client. Oxford: Blackwell.
• Dickinson, P. R. & Thornton, N. (2006). Cracking and Building Movement. Coventry: RICS
Books.
• Hui, E.C.M. & Zheng, X. 2010. Measuring customer satisfaction of FM service in housing
sector. A structural equation model approach. Facilities. 28(5/6): 306-320.
• Josephon, P.E. & Hammarlund, Y. 1999. The Causes and Costs of Defects in Construction: A
Study of Seven Building Projects. Automation in Construction. 8: 681-687.
• Yiu, C.Y. 2007. Building depreciation and sustainable development. Journal of Building
Appraisal. 3(2): 97-103.

41. Q&A
End of presentation……

42. Last but not least…
next BS CPD by LPhyD UKM
Mac: FM Contract
Apr: Garis panduan BCA JKR (Part III)