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By Justin Cotton, Director, Lovegrove & Cotton – Construction and Planning Lawyers In the recent high profile Victorian “Lacrosse” case decision concerning rapid fire spread up the facade of an apartment high rise, the project fire engineer was held to be a contributory wrongdoer for not conducting a “full fire engineering assessment”.  It was not enough for the fire engineer to just confine its assessment to those fire hazards identified by the Building Surveyor as deviations from the Deemed to Satisfy requirements of the Building Code. Furthermore, the Tribunal warned against the use of template or “boiler plate” language in fire engineering reports without sufficient attention being given to what the words actually mean or require in terms of compliance benchmarks. The main thrust of the findings against the fire engineering company was that, based on the written consultancy agreement it had signed with the Developer for the project, there was an undertaking to complete a “full fire engineering assessment”.  In turn this imposed a duty on the fire engineer to at the very least actively inquire about what aluminium composite panels (“ACPs”) were proposed to be used, and to advise accordingly on the possible ramifications. Significantly, the Tribunal found that anyone of the same experience as the fire engineer who saw a reference in architectural drawings or other documents to the use of ACPs, should have been on notice that the proposed product would likely contain highly combustible polyethylene in its core.  The evidence was that the engineer would have seen reference to ACPs on at least one of the contract documents or drawings. Partly because the engineer had not mentioned ACPs in the most relevant fifth fire engineering report (“FER”) or in the MFB application, it seemed likely to the Tribunal that the engineer had not given significant thought to the implications of the proposed use of the product. At paragraph 479 the Tribunal stated that: “a ‘full fire engineering assessment’ at least required [the fire consultant] to inquire into and assess the range of construction materials for the purpose of establishing  ‘potential fire hazards (both normal and special) of the building’.  I am satisfied that [the fire consultant] failed to do this.” It is important to note that the fire engineering company was one of several building practitioner defendants in the case.  The Builder of the project had also cross claimed against other practitioners including the Architect and the relevant building surveyor company (“the RBS”).  Even the French national who as a tenant had discarded a lit cigarette butt into an ice cream container on an apartment balcony, hence igniting the fire, had been joined to the proceeding, although no longer resident in Victoria at the time of the hearing. In arguing a defence the fire engineer seemed to almost cast their role as deferential to the relevant building surveyor (“the RBS”), responding to requests or information from the RBS only to assess potential deviations from the Deemed to Satisfy provisions of the Building Code. In addition, the engineer argued that their fifth FER assumed, and the other building professionals were well aware, that only non-combustible facade panels were to be used in the project.  However, the evidence at trial was that this FER was far from clear that there was an absolute prohibition on such products. The Tribunal focused on the consultancy agreement the engineer had entered into, and what this compelled that consultant to actually do on the project.  This is of key importance in the eventual finding of significant proportionate liability (more than 35%) against the fire engineer.   It was found that, based on the contractual duties in the agreement, the engineer was under an obligation to exercise reasonable care.  This was co-extensive with the duty the engineer had at common law to provide its services with reasonable care. Furthermore the engineer stated in evidence that it had relied on the “typical fire engineering process”, and that the fire engineering guidelines (“IFEG”) are merely a series of guidelines and are not mandatory law.  In contrast, the Tribunal said that this “typical” process was not the “full engineering assessment” contemplated by the consultancy agreement. In asserting this the Tribunal referred to the IFEG which mentions a three step process of firstly the gathering of information to determine the principal building characteristics, then conducting a systematic review to establish potential fire hazards (both normal and special) of the building, and finally identifying preventive and protective measures that can be taken to address the hazards. Finally, it was found that it was no defence for the fire engineer to assert that other building professionals such as the Architect, the RBS and the Builder were all aware of the risks associated with ACPs and that they were to ensure that only non-combustible materials were to be used. It was said that whatever knowledge these other parties had of the risks, that the awareness of the specialist fire engineer should have been superior.  For instance, based on the evidence at trial, only the engineer knew that an ACP with a polyethylene core did not meet the Deemed to Satisfy requirements of the Building Code. To conclude, the primary allegation against the fire engineer was that it failed to conduct a “full engineering assessment” of the proposed building design pursuant to the appropriate level of detail called up by the IFEG, which was what was required by the terms of the consultancy agreement. At paragraph 504 of the Decision, the Judicial Member of the Tribunal summed up as follows: “In particular, I agree with the observation that the Fifth FER was ‘too generic and superficial’ and generally failed to undertake the systematic hazard analysis that ‘would have discovered the use of 100% polyethylene core ACP and concluded this created an unacceptable risk of spread of fire in the location and configuration  proposed on the architectural drawings’.” Equally importantly, the Tribunal decided that the fire engineer had a clear duty to warn at least the Builder, and possibly also the Architect and the RBS that the ACPs proposed for use on the east and west facades of the Lacrosse tower did not meet the Deemed to Satisfy requirements of the Building Code. There was then a causal link established between the proportionate liability of the fire engineer and the damage, because if this consultant had instead warned that ACPs with a polyethylene core did not meet the Deemed to Satisfy provisions of the Building Code, the RBS would not have approved the Stage 7 Building Permit.  It was this Permit that allowed the extensive use of ACPs on the east and west facade, including on un-sprinklered balconies. The finding against the fire engineer should not be seen in isolation, but instead viewed in the context of the rest of the 200 plus page decision and the findings against other building practitioners involved in the project.  Nevertheless, it is a salutary lesson for fire engineers in terms of multi-level residential designs and the use of potentially combustible products that do not properly inhibit the spread of fire. For more advice and assistance in relation to building regulatory control and construction disputation, do not hesitate to contact legal practitioners with expertise in construction related matters. This is a Lovegrove and Cotton publication. For related articles on cladding please see: How to Respond to Cladding Rectification Notices and Orders in Victoria Full Replacement of all EPS Cladding on Apartment Buildings may not be Ordered if Performance Based Solutions are Satisfied Appealing cladding related building notices under the Building Act 1993 (Vic) Cladding safety Victoria funding and demands for cladding regularisation – the interplay Disclaimer This article is not legal advice and discusses it’s topic in only general terms. Should you be in need of legal advice, please contact Lovegrove & Cotton Lawyers and our experienced lawyers will assist you based on the facts and circumstances of your case. Lovegrove & Cotton Cladding Compliance and Regularisation Lawyers For thirty years, Lovegrove & Cotton have provided advice and represented property owners, builders, and building practitioners in cladding regularisation matters. Please see the cladding section page for more information. Please see our page for more information. If you wish to engage the firm, feel free to contact us via our website, by emailing enquiries@lclawyers.com.au, or via phone at (03) 9600 4077.