How to Resolve Construction Defects
Balance the Benefits of Removing Faults as they arise with the Alternatives
Where faults become apparent during construction, the need for corrective action often has to be considered against the consequent delays and costs. Often it is appropriate to look for alternatives which limit the effects of the faults, rather than to pedantically undo defective construction so that everything can be redone correctly.
Proper regard should be given to the terms of contract. Often they will stipulate the procedures to be followed. Standard forms generally deal with the right to withhold money if the builder is responsible, but are less helpful where consultant designers are to blame.
Often, blame is allotted prematurely without prior investigation. If, for example, a material cracks, the subcontractor, which supplied and fitted that material is routinely the first to be blamed. The blamed subcontractor is then told to resolve the problem. If it researches cause and proves it was not its fault, it is rarely compensated for its efforts.
Where the faults do not lie in its work, it is unlikely to have the skills to form a proper diagnosis, resulting in inappropriate repair. For example, when finished work fractures, the visible failure is in the finish – perhaps painted plaster or render, tiles or panels, etc. The fractures may simply reflect underlying failures, but the finishing contractor – say, the plasterer or decorator – is implicated because the manifestation of failure is in their work.
No amount of repair to failed plaster over live cracking in the substrate can effect permanent cure but it could temporarily disguise the real problem – causing, not only abortive costs at the time, but further abortive costs in subsequent repairs until the root problem is addressed. It is an excellent way of generating disputes which provide further opportunity to waste time and money.
Contractual Mechanisms for Remedying Defects
Many building contracts contain requirements for the investigation of incorrect work. Generally the cost follows the findings. If investigation shows the suspected faults exist, the contractor pays; if not, the employer pays. This may deter the employer or its agent from instructing opening up to look for suspected faults. The result is often that payments are withheld against suspected defects without clear instruction for investigation.
Generally, the withholding of payment because of suspected deficiencies in the contractor’s work is as unsatisfactory as suing for damages without first establishing a sustainable claim. It is also contrary to the ‘innocent until proven guilty’ principle, which in civil disputes is reflected in the doctrine that places the burden of proof on the party which asserts something to be a fact. Thus it is for the party which accuses someone of fault to prove that accusation, not for the other party to disprove it.
Establish the Scope of Remedial Works
A more sophisticated approach, given in some standard forms and incorporated in many bespoke contracts, is to make establishing the extent of the defect the contractor’s responsibility once its existence has been established. Thus, once the contractor has been found to be at fault, the cost of establishing the scope of the remedial work required lies with the contractor.
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