PAUL GRIMSHAW

FIRE ISSUES IN LITIGATION

Leaky Building Litigation – Traditional Defendants Council Builders Developers Architects Cladding manufacturers Membrane installers and other subcontractors

More recently Structural engineers Fire engineers!! (particularly high rise buildings and apartments)

Underpinning all is breach of the Building Code Portions most commonly referred to are: B2 which states “Building elements must, with only normal maintenance, continue to satisfy the performance requirements of this code for the lesser of the specified intended life of the building if stated, or: (a)the life of the building, being no less than 50 years if: i)those building elements (including floors, walls, and fixings) provide structural stability to the building, or

ii)those building elements are difficult to access or replace, or iii)failure of those building elements to comply with the building code would go undetected during both normal use and maintenance of the building (b)15 years if: i)those building elements (including the building envelope, exposed plumbing in the subfloor space, and in-built chimney and flues) are moderately difficult to access or replace.”

E2 which states “Buildings must be constructed to provide adequate resistance to penetration by, and the accumulation of, moisture from the outside”

C2 to C6 which is designed to “(a)safeguard peole from an unacceptable risk of injury or illness caused by fire, (b)protect other property from damage caused by fire, and (c)facilitate firefighting and rescue operations.”

C/ASI which sets out specific measurable performance criteria. It states: “This Verification Method C/VMI and the Acceptable Solution C/ASI is this document provide a means of compliance with the New Zealand Building Code Clauses C1-C6 Protection from Fire. C/VM1 and C/ASI are issued under section 22 of the Building Act 2004 respectively as a Verification Method and an Acceptable Solution. This Verification Method and Acceptable provide one way that can be used to show compliance with the New Zealand Building Code Clauses C1-C6 Protection from Fire. Other ways of complying with the Building Code are described, in general terms, in the preface of the New Zealand Code Handbook.”

Typical fire defects I see Underspecified fire separation between units Underspecified fire rating of windows Lack of provision for protection from spread of fire (fire curtains) Lack of fire rated walls where 1m from boundary

Lack of sealant or fire collars around penetrations Lack of fire rating to walls, ceilings intertenancy walls Lack of adequate ventilation Lack of fire safety paths/doors/smoke alarms

Fire rating gib only to false ceiling Cavities not compartmentalised in to fire cells Cavity battens too small

Potential parties Fire engineers who prepare fire reports and specs for building consent Or who inspect during construction Architects, project managers, builders who do not construct the building in accordance with the fire report specifications

Arguably architects, project managers or builders who don’t identify lack of fire rating during construction (failure to warn)

Damage No visible damage – no rotten wood Council takes breach very seriously – safety issue

What you can be sued for Cost of repair/diminution Consequentials General damages Costs No proportionate liability

Limitation issues Building Act – 10 years Limitation Act – 6 years Breach of Contract – 6 years

How to minimise your risk Ensure your reports comply with Building Code and relevant technical literature Ensure reports/specs sufficiently detailed so others on site can interpret them When inspecting, ensure fire aspects comply with the Code, otherwise refuse to sign off

Limit of liability clauses in your contract – legally problematic; If all else fails, have plenty of PI cover!!

Paul Grimshaw, Partner, Grimshaw & Co DDI: Mobile: