Patent Defects or Latent Defects in Flawed Construction?
Objectively a construction defect is a physical problem in the building whether in the fabric, structure or services, especially one that impairs correct function. To those who commission building work or occupy and use buildings, a defect is a feature of the building that is regarded as inadequate. In this sense, defect like beauty may be said to be in the eye of the beholder. To unravel defective construction disputes and analyse both legal and practical remedy, a wise man pays careful regard to the contracts.
Many building contracts provide mechanisms for resolving defects - but here we have a new definition. A defect is an aspect of the design, building work or materials which does not conform to the requirements of the contract under which they were procured.
Patent and Latent Defects
Building and engineering contracts customarily distinguish patent defects and latent defects. Defects, whether patent or latent, are equally real and potentially damaging. They are however subject to different rules at law which may be expressed in contracts. It is this which often causes confusion.
The terms latent and patent are opposites. A patent defect is discoverable and may be open to view, exposed, manifest, evident or obvious. A latent defect will exist before it is discovered as hidden or concealed flaws in the work. When a latent defect becomes manifest it ceases to be a latent defect and becomes patent. At the moment a latent defect becomes patent the mechanisms under contract for dealing with latent defects are usually relevant.
Looking for latent defects...
Tortious Liability for Defects Inspections
In tort the distinction between latent defects and patent defects is also significant. A defect which could be discovered by competent professional inspection, whether competently inspected and discovered or not, is a patent defect. This was central to the appellant court's findings in Baxall Securities Limited -v- Sheard Walshaw Partnership, CA 22 January 2002, where the liability of the architect in the tort of negligence in respect of design defects was at issue. Consultant designers may remain liable and may owe a duties of care to the end users/purchasers of the products of their designs for latent defects by f ailing to adequately specify design parameters or negligently failing to properly check contractor's designs.
The same is not necessarily true of patent defects. This is well expressed in the House of Lords decision in the case of Murphy -v- Brentwood District Council as follows; "But there can be no doubt that, whatever the rationale, a person who is injured through consuming or using a product of the defective nature of which he is well aware, has no remedy against the manufacturer".