UK: Architect’s Responsibility For Latent Defects

Last Updated: 28 February 2006
Article by John Hanson and Elliott Bromley

Originally published in The Insurance Law Quarterly: Winter 2005

Pearson concerned a warehouse constructed in the late 1980s with a siphonic drainage system which, as it subsequently transpired, had been designed with an inadequately low capacity. As a result, the valley gutters to the warehouse overflowed during heavy rain in 2002, and the claimant suffered in excess of £2 million of damage to its stock of educational books.

When is a defect latent?

Pearson was not itself the original owner or occupier of the building, and so, following Baxall v Sheard Walshaw Partnership (2002) (a case also concerned with the under-capacity of siphonic drainage systems), Pearson could only claim against the architects responsible for negligently specifying the capacity of the drainage system insofar as the defect was latent. As established in Baxall, in the construction context a defect will not be latent where " in the normal course of events, a surveyor would be engaged in a survey of a building for a purchaser, and, with the exercise of due diligence, that surveyor would have discovered a defect ". This test represents a fairly straightforward development of the intermediate inspection point which arose in Donoghue v Stevenson (1932) because of the opacity of the infamous ginger beer bottle.

Unbeknownst to Pearson, however, the previous occupiers of the warehouse had also suffered a flood as a result of the inadequate capacity of the siphonic drainage system, and an engineer appointed by the previous occupiers’ insurers had in fact discovered that the capacity of the drainage system was inadequate. The previous occupiers, however, did not themselves know of the defect as their insurers, having apparently decided not to pursue a subrogated recovery action, did not pass to them a copy of the engineers’ report or communicate its substance.

Thus, although Pearson itself did not know about the latent defect at the time of the loss, somebody else (i.e. the previous owners’ insurers) did. This immediately raises questions as to whether the defect ceased to be latent in these circumstances even if it was not reasonably detectable by a third-party surveyor.

The judgment

The Court decided this issue in Pearson’s favour by reference to Lambert v Lewis (1982), where claimants, injured when their vehicle was hit by a runaway trailer, successfully sued the manufacturer of the defective coupling that caused the accident, notwithstanding that the driver of the vehicle towing the trailer had had ample opportunity to inspect the defective coupling prior to the accident. The mere fact of the possibility of intermediate inspection by one member of a class to whom a duty of care is owed does not necessarily preclude that duty of care from continuing to exist for the benefit of other members of that class who have not themselves had the opportunity to inspect. Furthermore, if the possibility of intermediate inspection does not necessarily prevent the duty of care from continuing to exist, then logically the actual discovery of the defect by one person should not necessarily prevent the duty of care from continuing to exist for the benefit of other members of the class.

Applying the Baxall test, the Court held that the under-capacity of the siphonic drainage system was a latent defect, on the basis of expert evidence as to the state of knowledge of the surveying profession at the time. Pearson were therefore able to recover damages from Charter Partnership in respect of a defect which had already caused damage to the previous occupiers, and had been identified as the cause of that damage by the previous occupiers’ insurers. Although this result might seem surprising, it is important to bear in mind that these insurers were not ‘agents to know’ on behalf of the previous owners, and in their own right, not a member of the class of people to whom a duty of care is owed in respect of latent defects in buildings.

Latency is not inherent in the defect

Effectively, Pearson has clarified that latency is not " [a] quality inherent in the defect so that, if one person discovers the defect, that defect thereafter ceases to be latent to any other person," (HHJ Thornton QC) but instead a quality defined by the reasonable foreseeability of the discoverability of the defect. Accordingly, just because a defect has been discovered by one person, this does not necessarily mean that it must have been reasonably discoverable by all others; the discovery might have been an outrageous fluke of fortune and, in those circumstances, it can seem harsh to deprive an injured party of a remedy simply because someone else, wholly unconnected with the injured party, stumbles on the defect.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions