What is a defect?
14.01 ere is no precise denition, in law, of what constitutes a defect.1 Defects may
relate to design, construction, or both. e word “defect” may refer to the quality of
goods supplied.2 A defect may be patent, in the sense of being known or detectable upon
reasonable observation, or latent, in which case its existence is unknown and it is not
reasonably discoverable. In everyday parlance a “defect” is something that is faulty, or
not built correctly. is is also true insofar as the law is concerned with building defects.
But the legal connotation of the word “defect” is probably a little broader than that. It is
broader if, as is suggested, we use the word “defect” to denote an element in the design
and/or construction of a structure (or other asset), or other delivery of goods or services,
which in qualitative terms falls short of what should have been supplied.3 e emphasis
in this description is upon there being a discrepancy or shortcoming – whether major or
minor – in supply, in the sense of there having been a breach of obligation by the supplier
of goods and/or services, rather than a lack of functional utility (if there be any at all)
in what was supplied.4 Hence, goods may be regarded as defective where they were not
supplied in accordance with a contractual specication,5 even if those goods are capable
of being used adequately for ordinary purposes.6
1 Compare Lancashire & Cheshire Association of Baptist Churches Inc v Howard & Seddon Partnership  3 All ER
466 at 469, per Judge Kershaw QC. See also Lenz, “Guide to Identication of Construction Defects” (2000) 16 BCL
423. e question of what constitutes, and what does not constitute, a “defect” is not necessarily an arid or academic
one. For example, an insurance policy may be expressed to cover – or not cover – the cost of repairing “defective” works,
and the categorisation of works as “defective” or as “defects” will be vital to the question of whether the policy responds.
2 Henry Kendall & Sons v William Lillico & Sons Ltd  2 AC 31 at 90, per Lord Morris.
held: “In the context of an architectural design, a defect is a aw” (armed  BLR 324). In the context
of a contract to develop and supply computer software, a “bug” in the software may be regarded as a “defect”:
Schindler Lifts (Singapore) Pte Ltd v Paya Ubi Industrial Park Pte Ltd  SGHC 34 at , per Judith PrakashJ;
Longyuan-Arrk (Macao) Pte Ltd v Show and Tell Productions Pte Ltd  SGHC 160 at , per Belinda Ang
Saw EanJ; Millenia Pte Ltd v Dragages Singapore Pte Ltd  SGHC 193 at , per Quentin Loh J.
4 Compare Manufacturers’ Mutual Insurance Ltd v Queensland Government Railways (1968) 118 CLR 314, where it
was held, for the purposes of interpreting a clause in an insurance policy that excluded insurers’ liability for “loss or
damage arising from faulty design”, that “faulty design” included a design which was actually defective, even if the
defect was not present through the negligence of the designer. See also Simaan General Contracting Co v Pilkington
Glass Ltd (No 2)  1 QB 758 at 781–782, per Bingham LJ;
Canadian National Railway Co v Royal & Sun
5 British Fermentation Products Ltd v Compair Reavell Ltd  BLR 352 at 358 , per HHJ Bowsher QC. It
is even possible for goods to be regarded as “defective”, in a technical sense, where the quality or features of those
goods in fact exceed what the contract called for, such as where supplied metal is coated in such a way to make it less
susceptible to corrosion, and therefore more durable, than the requirements of the particular contract specication:
see Dymocks Books Arcade Pty Ltd v Capral Ltd  NSWSC 343
at , per McDougall J.
6 Take, eg, the construction of a swimming pool. A landowner may desire a swimming pool of maximum depth 7
ft 6 in to be constructed on his land. If he engages a contractor on terms that the contractor is to build such a pool,
but in breach of this stipulation the contractor only builds a pool that is 6 ft deep, the pool will be defective, even
though it will be capable of good use, and the demolition of the pool and its reconstruction to a depth of 7 ft 6 in
would be wholly unreasonable and disproportionate: Ruxley Electronics and Construction Ltd v Forsyth  AC
. Likewise where a construction contract requires the contractor to build a structure of certain dimensions
(internal area), and the dimensions in the structure built by the contractor are smaller (this, incidentally, being an
issue that has arisen on many occasions in Hong Kong: see Lin, “On saleable area” (2013) 29 Const LJ 284, and is
also the subject of at least one Singaporean judgment: Yap Boon Keng Sonny v Pacic Prince International Pte Ltd
 SGHC 161 at –, per Judith Prakash J). e position may be dierent where a person agrees not
to provide a product but to maintain it so that it is “defect free”. A maintenance contract to that eect will require
the contractor to ensure that the product in question is functional and suciently operative, which is dierent from
requiring the contractor to ensure that the product is kept in “brand new” condition: see Kone Elevator (HK) Ltd v
Citybase Property Management Ltd  HKCFI 1022 at –, per Mr Recorder H Wong SC.