Q&As

Is there any case law on the meaning of ‘defect’?

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Published on LexisPSL on 25/08/2016

The following Construction Q&A provides comprehensive and up to date legal information covering:

  • Is there any case law on the meaning of ‘defect’?
  • General definition of ‘defect’
  • ‘Defects’ in construction contracts

Is there any case law on the meaning of ‘defect’?

As identified in Practice Note: Defects liability period and rectification of defects, there is no ‘standard’ definition of what constitutes a defect in building works. The precise meaning and scope of ‘defect’ will depend upon the terms of the contract in question (including any express definition of ‘defect’). For further information, see: Defects liability clauses: Emden's Construction Law by Crown Office Chambers [12.24].

General definition of ‘defect’

The courts have previously attempted to define ‘defect’ in a range of legal claims but no clear definition has prevailed.

The case of Tate v Latham & Son (1876) 1 QB 502 (unavailable on Lexis®Library) defined a defect as ‘as lack or absence of something essential to completeness'. However, in Yarmouth v France, the court held that a defect in an item of plant included ‘anything which renders the plant, etc unfit for the use for which it is intended, when used in a reasonable way and with reasonable care'. Both cases concerned the meaning of defect in the context of employer liability

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