defective construction work

DefectiveDefective Construction WorkConstruction Work

BS CPD Talk SeriesBS CPD Talk Series13 Feb 201413 Feb 2014

CPD POINT(S):BS RISM: 4

AdiAdi IrfanIrfan CheChe AniAniLPhyDLPhyD UKMUKM

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).

• ‘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’

DEFINITION OF ‘DEFECT’: Terminology

• Disconformity

• Non-conformity• Non-conformity

• Non-compliance

• Incomplete

• Temporary disconformity (pre-completion defects): defects before completion

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 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.

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.

QUALITATIVE DEFECTS

3 Categories:

• work (including design) or materials not of acceptable • 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.

QUALITATIVE DEFECTS

Defects falling into any of these 3

categories: provide ground for categories: provide ground for

the purchaser/owner to claim

againts some or all of project

team

Alasan penghakiman Rosdi vs Coopas (2012)

PATENT/ LATENT DEFECTS

Defect is patent if ;

• Open or visible to the eye;• Open or visible to the eye;

• Observable, whether or not actually observed.

� The scenario of – physically looks in good condition but truly there are many hiding problems; and

PATENT/ LATENT DEFECTS

� Defects normally shows their symptoms before getting worst.

Growth of mould and algae due to water ponding and continuous

dampness Water ponding due to blockage of

outlet to rainwater downpipe (due to small outlet) – it’s very hot

during the course of inspection

© All rights reserved

PATENT/ LATENT DEFECTS

Defect is latent if ;

• Hidden; Not observable;• 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)

PATENT/ LATENT DEFECTS

• Therefore, it is important to;

uncover all defects as early as possible (during DLP 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)

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.

� 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).

© All rights reserved

How many faces can you find?

To test your intelligence:

1. If can find 0 – 5 faces – idiot2. If can find 6 – 7 faces – stupid3. If can find 8 – 9 faces – normal3. If can find 8 – 9 faces – normal4. If can find 10 – 11 – very normal5. If can find 12 – 13 faces –genius

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

May be supplied pursuant to a letter of intent or in excess of

the stipulated financial

Work & materials

considered at all or agreement has not been reached

the stipulated financial authority or scope of work

May be supplied outside the contractual scope of work

May be supplied by uninvited stranger

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.

Tribunal report: sample

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 • 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.

THE STANDARD OF WORK

• Difficulty (no standard of work) if a contract has not eventuated.

• Standard is ‘complying the request’.• 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

THE STANDARD

OF WORK

© All rights reserved

THE STANDARD OF WORK

© All rights reserved

THE STANDARD OF WORK

© All rights reserved

THE STANDARD OF WORK

© All rights reserved

THE STANDARD OF

WORK

© All rights reserved

THE

STANDARD OF

WORK

© All rights reserved

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 • The design & work would have to be a

�Reasonably good quality.

�Reasonably fit for its purpose.

THE STANDARD OF WORK

© All rights reserved

THE STANDARD OF WORK

© All rights reserved

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 (QLASSICthere is no contract) i.e. Act 133, UBBL, etc (QLASSICis not statutory); and compliance to safety & health

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

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 Hairline cracks of less than about 0.1mm width are classed as

negligible.

Up to 0.1(2)

1 Very slight Fine cracks which can easily be treated during normal decoration.

Perhaps isolated slight fracturing in building. Cracks rarely visible

in external brickwork.

Up to 1(2)

2 Slight Cracks easily filled. Redecoration probably required. Recurrent Up to 5(2)2 Slight 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.

Up to 5

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 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.

15 to 25(2) but also

depends on number

of cracks

5 Very severe 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.

Usually greater than

25(2) but depends

on number of

cracks

Source: Dickinson & Thornton (2006). Cracking & Building Movement. Coventry: RICS Books

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.

THE STANDARD OF WORK

© All rights reserved

THE STANDARD OF WORK

© All rights reserved

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)

LATENT DEFECTS (after restitution)

• Latent defects may subsequently manifest themselves long after restitution has been made.

• This situation resulted in declining real estate values (Yiu2007).

• 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.

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.

Q&A

End of presentation……

Last but not least…

next BS CPD by LPhyD UKMnext BS CPD by LPhyD UKM

Mac: FM Contract

Apr: Garis panduan BCA JKR (Part III)