Construction Defect List is one of the most important pieces of evidence in construction Defect claims. It is one of the keys to the success of the Claim both in Court and in Arbitration. This article is going to the defect list, one of the common mistakes in construction lawsuits.
How Does This Article Help You?
This article gives you an easy explanation and guidance. How to prepare a Construction Defect List to meet with the Thai law requirement regarding burden of proof and standard of proof. When you go to Thai Court or Thai Arbitration Center. This explanation and guidance help you to prove your damages and/or remedies regarding defects of your construction. It gives you more chances to win the case.
However, the defect claim is subject to the default of the owner, provision of construction contract. Also, construction law and other factors related to law procedure. (see the limitation of defect claims below).
Easy Definition of Defect List
In order to give an easy definition of the construction defect List. Let’s say there are two main types of defect, the small defect and the serious defect. An easy way to define these two defect types are; A small defect means the work is not beautiful as it should be. But, it is still usable without a hazard like painting and skimming etc.; A serious defect means the work can’t be used as it is or it is not safe to use like no standard material and structure of the building.
Some defects are easy to see but some aren’t. Some may appear during the construction, some at the time of delivery or after delivery before/after warranty periods. Information in this article applies to both small and serious defects which appear before the end of the warranty period.
How Most People Prepare Their Defect List?
Most owners do the same. Preparing a defect list and damage list themselves without knowing and understanding the duty of proof and standard of proof in the Thai Legal System. Here is an important Note; although the contractor has a liability for the both small and serious defects mentioned according to the signed contract. But the owner has a duty of proof of defect and damages. And the proof must attain a legal standard.
A voice of a third party is louder than the voice of the disputant. This legal theory has been accepted since Roman age until this day. That is why preparing a Defect list and Estimate Damages list without certification by a third constructor is a common mistake.
This mistake caused a serious effect on the compensation amount paid to the owner. Although the Thai Court has a right to decide the amount of damages without evidence provided. It often does not cover the damages in reality.
Recommendation to Prepare the Defect List
Due to a question of Law regarding Burden of Proof and Standard of Proof. Therefore, the defect List must clearly provide the Defect details and the Damages details. It should be prepared by a third party constructor or a construction consultant. The amount of damages should refer to the middle price or the market price of the construction which is prepared yearly by the Department of Business Development. Making a defect list this way creates credibility to both the defect and the amount of damages.
In conclusion, when making decisions, the Court or The Arbitration use the rule of preponderance of evidence or balance of probabilities. Better evidence is the winner.
Law reference; Section 222 to 225 of the Civil and Commercial Code (CCC). Section 85 and 104 of the Civil and Commercial Procedure Code. Supreme Court Judgment No.1086/2509
Limitations of Defect Claim
As mentioned above, defect claim is subject to the default of the owner, provision of the construction contract. Also, construction law and other factors related to law procedure. Here is limitation of defect claims under Civil and Commercial Code.
1-If the defect of the work originates from the nature of the material supplied by the owners, or from instruction given by him, the contractor is not liable, unless the contractor knew of the unfitness of the materials or the impropriety of instructions, and did not give notice of it. Section 591 of CCC.
2-If the owner has accepted a defective work either expressly or impliedly, the contractor is not liable unless the defect was such that it could not be discovered when the work was accepted, or it had been concealed by the contractor. Section 598 of CCC
3- No action against the contractor can be entered later than one year after the defect appeared, Section 601 of CCC.
You may be interested in reading the Construction Delay Claim and Construction Extra Work Claim.
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