This article first featured in the Summer 2015 issue of the Solicitors Journal
The increase of workload for professionally qualified fire engineers acting as expert witnesses on civil cases has shifted from discernible to tangible in recent times.
This is great for our consulting peer group. It’s interesting and challenging work which is required to be carried out by persons that are appropriately professionally qualified and is usually invoiced on a time-charge basis. Fantastic. Compared to working on building design and delivery where we are competing with people without the professional qualifications who say they can do an equivalent job cheaper and where clients put cost above professional qualifications, it’s much better business. Splendid. However, there is a ‘but’.
For us as consulting engineers, fire safety expert witness work is a bit like the rhubarb plant in the corner of the garden. It’s ancillary to the main purpose of the garden; it doesn’t need to be lavished with attention to survive, and it gets on with producing something that we know is not going to be to everyone’s taste. And, year-on-year, it seems to produce a bit more. According to the gardener in my family, it’s just the fertility of the soil that keeps it going.
The expert witness subject is one which is being regularly discussed between peers in our profession, not necessarily in relation to the technical detail of the breaches which form the cases (i.e. the rhubarb itself) but rather the nature of the ground which is producing the increasing crop of cases for us to work on.
The discussions are tinged with frustration at the increase in frequency of problems with fire safety coming to light which don’t reflect well on our profession and that create the impression that the industry is not doing its job properly. Unfair? Perhaps. Or, maybe the fire safety industry has been guilty in respect of not doing more together sooner to arrest the slide in standards.
Some 15 years ago I was in charge of a large research fire test on a 6-storey timber frame building, the dry lining of which had been awarded to a contractor that had been determined as providing the most competitive tender (i.e. as for a typical ‘real’ building project). It was decided that we needed to move a couple of internal walls and in doing so discovered that none of the dry lining had been carried out properly. The first layer of plasterboard had not been properly butt jointed and independently fixed and was only held in position by the fixings provided for the second layer. As such the protection as installed would have struggled to achieve half the 60 minute fire resistance designed for the building. The entirety of the building to be subjected to the research fire test had to be re-dry lined correctly. The project’s construction manager memorably stated, “I wondered why there were so many nails left over”. The issues with the quality of construction were reported as part of the project findings and I subsequently received calls from contractors with queries relating to these findings and claiming that everyone did it that way as it was faster.
A decade and a half later we’re still seeing the same old problems – omission of fire protection from the places where it should be, manufacturers’ claims of product performance not withstanding scrutiny, use of products outside of their limits of application, etc.
Has that got any better? No, not really.
What has changed is the frequency of ‘discovery’. This is not as the result of a greater incidence of fires but rather, seemingly as a result of other issues coming to light and being investigated first, such as failures in weather-tightness, acoustics or structure. Quite a lot of the calls which we now get as a precursor to appointment start with the words, “we’ve been looking at… and we’ve got concerns about what we’ve seen with the fire”.
Why is this? Whilst we are used to seeing corners being cut in terms of fire safety, it looks like quality in other aspects of design and construction is also suffering more. Is it a feature of a drop in the level of assurance that is being applied during project delivery?
I remember well the time I spent carrying out fire protection defect action surveys in nuclear power plants that were subject to publically-funded enforcement by the Nuclear Installations Inspectorate. As a result of the seriousness with which all parties treated this process, defects that we identified were very much the exception rather than the rule. Contrast this to the situation we have today when a significant majority of new building projects receive assurance of Building Regulations compliance that is purchased from the Building Control body and where the scope of the service providing this assurance is subject to contractual negotiation by the developer/contactor. When we inspect buildings delivered by such arrangements, frankly is it any surprise that we often find that very little has been done correctly?
There is a chance that many readers of this article will be unfamiliar with Regulation 9 of the Approved Inspectors Regulations which includes this statement:
“Approved Inspectors shall have no professional or financial interest in the work they supervise unless it is minor work”.
To the layperson or, indeed, the vast majority of persons involved in the construction industry, this is taken to mean that it is against the law for an Approved Inspector to be providing assurance to the client that the ‘works’ meet the requirements of Building Regulations when the Approved Inspector has either a professional or commercial interest in these works. The job of enforcing compliance with these regulations was gifted by government to the Construction Industry Council (CIC). So, then, why is it that we are currently faced with all of the following arrangements being operated in the field:
This confusing picture is currently the subject of discussions between the fire engineering design sector, government, CIC (CIC Approved Inspectors Register) and the professional membership organisations representing the Building Control sector.
So if government and its appointed policeman left the door ajar, the construction industry has shoved it wide open. The prospect of being told what to do by the person who then ticks the box in terms of Building Regulations approval has been like manna from heaven for the project managers challenged by cost conscious clients (external and internal) to reduce professional fees. The result has been that some developers and main contractors now even request tenders for a one-stop-shop design and approval service with no regard to Regulation 9 and scant regard to their own liabilities. These liabilities are clear in CDM Regulations in terms of ensuring that those carrying out the work are competent or and that the provider of the Building Control function cannot act in the capacity of a designer (and will be unlikely to be appropriately professionally indemnified to do so). As a consequence, Building Control bodies and/or ‘related’ companies have been actively commercially incentivised to engage in design work such that they can realise the fees for this work and then ‘afford’ to carry out the ‘lighter touch’ Building Control commanded by the fees and scope negotiated for that function with the client.
The result is less fully independent scrutiny of designs on the table and construction in the field. The outcome is lower standards of project delivery and greater incidence of problems manifesting themselves later on.
There is an obligation on any Building Control body to provide advice to assist the project team to meet the Building Regulations. Traditionally this advice related to ‘what’ needed to be achieved but, for the reasons explained above, is now increasingly also including ‘how’ to achieve it. Some Building Control bodies proudly declare that they will operate as “part of the design team”. When the wheels come off the wagon it has been interesting to see how quickly the word “design” is replaced with “advice” when the finger pointing starts and the architect and construction manager (i.e. those with the legal responsibility for design) have been asked to explain the fire safety design and are looking to the Building Control provider to answer the questions.
Our experience to date is that the view of the legal profession appears to be that the Building Control body, by means of not having a design responsibility, is ‘untouchable’ albeit not beyond admonishment when it comes to civil claims for building defects. Where the Building Control function has not been completely independent this puts a different complexion on things and perhaps it is appropriate for this viewpoint to be challenged in cases where it is clear (or perhaps unclear) that the Building Control body has had a conflict of interest in the work it has approved, either through having a relationship with the designer or by providing design or commissioning design itself. And, what about the additional claim on the developer and/or main contractor for not ensuring appropriate independence?
If things continue as they are could there be a danger of the bubble bursting?
I think so. It’s difficult to see how they can but if standards continue to spiral downwards we may reach a tipping point where the legal sector is faced with so many claims for litigation that the financial structures supporting the industry can no longer carry the load being placed upon them. Insurers and investors should therefore be taking a closer look and doing their bit to raise the bar in terms of expectations on developers and contractors to ensure that the assurance being provided by the Building Control function is completely and transparently independent, and that designers and contractors understand and accept completely their liabilities in terms of design and construction delivery and that these liabilities are not obviated by Building Control approval. A simple statement in the Employers Requirements for the project referencing Regulation 9 and stating what it means in the context of the project would be all that is needed. In terms of professional fees, it’ll cost a bit more to build the job but there will be less picking up the pieces down the line.
By virtue of the human condition, oversight, mistakes, negligence and occasional skulduggery will still have their place in the make-up of the compost which will keep the rhubarb going in the corner of the garden but, at least, the Building Control process will keep it under control rather than acting as a fertiliser.
Written by Mostyn Bullock, Tenos Director
Further reading on this subject can be found in the article published in RICS Journal Aril 2015 – Click Here >
The subject of competency and ethics in fire engineering practice has been covered in a series of four co-authored articles published in International Fire Professional (the journal of the Institution of Fire Engineers)