Cornerstone – The fire is out, but the legal complexities remain

Building fires have been high in the nation’s consciousness since the tragic events at Grenfell Tower in June 2017. 

The construction industry has had to reflect on its approach to fire protection and other safety systems, with extensive testing and reviews of existing and intended buildings, as well as emergency remedial works carried out and safety measures implemented. The government too has commissioned a full review of building regulations and fire safety, with a final report prepared by Dame Judith Hackitt, the former Chair of the HSE.

The implications of these reviews will be long-felt and wide-ranging. Attitudes to safety-critical systems have already changed, with the new focus on them likely becoming entrenched as a result of public interest in and concerns with them.

The majority of the column inches, and the industry’s attention, has, understandably, been on proactive measures to review existing fire safety systems. But as much as fire safety systems can be improved, fires themselves cannot be completely stopped; indeed, if they could, fire stopping measures would not be required at all. 

So if a fire does take place and it spreads due to a failure in the fire stopping installed in a building, what happens? You might think it would be an open and shut case against the contractor who wrongly installed fire stopping – but you might be in for a surprise. 

The Building Regulations require that buildings are sub-divided with fire-resisting construction ‘to an extent appropriate to the size and intended use of the building’. The regulations also require that buildings are designed and constructed ‘so that the unseen spread of fire and smoke within concealed spaces in its structure and fabric is inhibited’. With high-rise flats, that commonly means each flat is designed as a self-contained ‘box’, giving 60 minutes’ protection before spreading to the rest of the building, a requirement set out in Approved Document B. 

Almost every construction contract has an express term requiring compliance with statutory requirements, including the Building Regulations. If it does not, it is arguably an implied term anyway. If a fire spreads because a building is not designed and constructed in the way described in Approved Document B, however, that does not automatically mean that the contractor (or designer if not a design and build contract) is liable. The Building Act 1984 provides that a failure to comply with an approved document ‘tends to establish liability’, but it is not conclusive. The contractor may be able to establish that it complied with the general obligation in the Building Regulations described above without following the Approved Document B standards by using fire engineering systems – for example sprinklers, fire curtains and fire shutters. 

Assuming liability can be established, causation will have to be established. It is not as simple as saying that because the fire escaped through inadequate fire stopping, all losses – reinstatement, alternative accommodation for residents, damage to property and such like – must be claimable. The contractor is not responsible for the fire per se, but rather the consequences of the spread of that fire as a result of the fire prevention failures. 

A building owner looking to claim must,therefore, establish what would have happened if the fire stopping had worked and what actually happened. Again, that is easier said than done. With any fire there are any number of variables that might affect how the fire spread. 

1. What type of fire was it – electrical, paper etc? 
2. What belongings were in the unit which might have contributed to its spread? 
3. Where did the fire start – in the middle of a room, in a kitchen etc? 
4. When was the fire noticed and the fire brigade called? 
5. How was the fire fought, whether by civilians or firefighters? 

All these will contribute to the question of working out the difference between the damage that was actually caused and that which would have been caused had the fire stopping been installed – and that is ultimately the sum that can be recovered.

Once liability and causation are caused, the usual questions of the financial value of loss will fall to be addressed. The defendant may argue that losses are limited to reasonable remedial costs, and might, therefore, say that some costs are irrecoverable come what may – for example if residents were housed in inappropriately expensive accommodation while works were carried out. Claimants have a general duty to mitigate their losses, although that has to be judged against the factual circumstances and the potentially desperate position that residents in this kind of scenario find themselves in.

With a greater focus on fire stopping measures at the time of construction, it is to be hoped that fires, and particularly catastrophic fires that could have been prevented with better buildings, become rarer. But as mentioned above, fires themselves are always likely to arise and so the question of liability for the damage caused when they do will remain. This is a far more legally complex area than might be thought.

For further information, please contact a member of Birketts’ Construction and Engineering Team.

This article is from the October 2018 issue of Cornerstone, our newsletter for those working in the construction industry. To download the latest issue, please visit the newsletter section of our website. Law covered as at October 2018.

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