A few hours later, the smoke alarm outside his front door activated, sending an alarm to the Metropolitan Fire Brigade. When they arrived at 2:29am, they discovered that a fire was travelling up the external wall cladding; within six minutes, it had climbed from level 14 to level 21. The Fire Brigade were able to carry out a total evacuation of the nearly 400 occupants. The ensuing Post Incident Analysis Report (‘PIA Report’) conducted by the Metropolitan Fire and Emergency Services Board subsequently linked the rapid spread of the fire to the use of combustible external wall cladding.1 Appendix 12 of the PIA Report listed a number of similar international high-rise fire incidents with rapid vertical flame spreading in buildings where metal composite cladding had been adopted: to this list could now be added the Grenfell Tower disaster on 14 June 2017.
On 28 February 2019, Woodward J, sitting in the Victorian Civil and Administrative Tribunal (‘VCAT’) handed down a detailed and extensive judgment dealing with the civil liability of the builder and the professional project consultants.2 It made for “sobering reading”, as the Association of Consulting Architects Australia (ACA) acknowledged: there will be “implications on the roles and responsibilities of architects”.3
The author has analysed the broader implications of the case in more detail elsewhere.4 This paper will analyse the decision to see if any lessons can be learned when it comes to architect’s liability for fire safety in England and Wales.
The Lacrosse apartment: project and design intention and procurement
The developer of the Lacrosse tower had entered a ‘Design and Construct’ (‘D&C’) contract with the main contractor. The project consultancy and design team was led by a firm of architects. Also in the design team were a fire safety engineer and a building surveyor, who had signed off on the building at different stages.
The building itself was clad with aluminium composite material (‘ACM’) panels. The core of these panels contained polyethylene, a combustible material with a high calorific content. Woodward J found that the fire safety engineer failed to conduct a full engineering assessment of the Lacrosse tower and failed to recognise that the material did not comply with the appropriate Building Control of Australia (‘BCA’) regulations. It was held that they probably did not warn the architects or the building surveyors of that fact.
The spread of the fire
The fire was started when the cigarette butt was disposed of in a plastic container on a timber topped outdoor table. The table itself caught fire. The fire then ignited cardboard on top of an air conditioning unit. The fire then developed up to a join between two ACM panels fixed on the wall. The panels and the combustible material within the structure caught fire. The fire then spread rapidly up the vertical wall and involved balconies located above. Embers dropped down and spread the fire to another apartment.
The fire report stated:
“The extremely vertical nature of the burn patterns to the exterior face of the wall suggest that the Alucobest aluminium cladding, along with the foam lagging and the PVC pipe of the building wall, contributed to the fire load and the rapid spread of the fire up the vertical face of the building to the floors and balcony areas located above.”5
The VCAT decision on liability
The builder was found liable to the owners for breaches of terms in respect of the suitability of materials, compliance with the law and fitness for purpose implied into the D&C contract by the Domestic Building Contracts Act 1995 (Vic). It was therefore primarily liable to pay them damages.
At the same time, however, a number of different members of the project consultancy and design team were also found to have failed to exercise reasonable care and were hence concurrent wrongdoers who were liable to pay a proportion of the damages that the builder had been ordered to pay. Woodward J apportioned damages between those defendants pursuant to Part IVAA of the Wrongs Act 1958: Building Surveyors (33%), Architect (25%), Fire Engineer (39%) and the original smoker’s share (3%).
The role of the architect as head design consultant
The striking point of the decision on liability is that the contractor was entitled to argue that it had relied on the skill and care of the design team, whereas the architect was not, on the facts of the case, entitled to argue that it had relied on the fire safety engineer.
It was the architects who had specified the use of a material ‘indicative to Alucobond’, which was a reference to a leading brand of ACMs. The architects attempted to argue that the builders should have interpreted the specification so as to comply with the performance requirements of the BCA. The Judge disagreed: he held that the specification “at least permitted, and on one view expressly prescribed, an ACP [ACM] with a 100% polytheylene core”.6 As a result, the architect breached their consultancy agreement by specifying a material that did not comply with the BCA.
At [448], Woodward J then went on to comment that although the architect may have been less expert in the application of the BCA than the fire engineers or the building surveyors, “it was nevertheless sufficiently expert to be alert to the need to ensure that the materials it specified did not unduly contribute to flame spread.” Further, the architect was “also in breach by effectively abdicating its responsibilities as head design consultant.”7 The firm inadequately assessed a sample of the proposed material used. At [455], the Judge held that, “its approval of a sample of product without assessing it against this apparently important aspect of its design, was a failure to coordinate its design intent into the final design.”
Conclusion: lessons to be learnt
The liability of the architect will depend on the nature of their retainer, their resulting responsibility and the instructions given to them. Whether or not a design professional is in breach of their contractual or other duty for failing to interpret building regulations properly can be difficult to establish. In J Sainsbury Plc v Broadway Malyan8, the architects brought a claim against consulting engineers in an action arising out of a catastrophic fire at a retail store. A girder in a fire compartment wall failed during the fire. The architects settled their dispute with the employer but failed in their claim for a contribution against the engineers. HHJ Humphrey LLoyd QC held that the engineers had not come under a duty, in that particular instance, to comment on fire protection issues. The J Sainsbury v Broadway Malyan case ultimately turned on the distinction between a request for approval and a request for comment, to which they did not reply. Design liability for fire safety can, therefore, be case specific. What the Lacrosse case demonstrates is that architects must be very careful when making assumptions about the responsibility of other design professionals in the consultancy team, so as to avoid potential liability for fire safety.
1 Metropolitan Fire Brigade, Post Incident Analysis Report, November 2014. Available at: http://www.mfb.vic.gov.au/Media/docs/Post_Incident_Analysis_for_Lacrosse_Docklands_-_25_11_2014 – FINAL-dd61c4b2-61f6-42ed-9411-803cc23e6acc-0.PDF (accessed 26th March 2019).
2 Owners Corporation No.1 of PS613436T v LU Simon Builders Pty Ltd (Building and Property) [2019] VCAT 286, accessible at https://www.vcat.vic.gov.au/resources/owners-corporation-no1-of-ps613436t-owners-corporation-no-2-of-ps613436t-owners
3 Association of Consulting Architects Australia press release, ‘Lacrosse Fire VCAT Decision’, 1 March 2019 ( https://aca.org.au/article/lacrosse-fire-vcat-decision ), accessed 26th March 2019.
4 Sawtell, D. and Maxwell, D. (2019). The Lacrosse Apartment Fire: Liability for Using Grenfell Style Cladding. Available at: https://www.law.ox.ac.uk/housing-after-grenfell/blog/2019/03/lacrosse-apartment-fire-liability-using-grenfell-style-cladding (Accessed 30th March 2019).
5 PIA Report, p.17.
6 Owners Corporation v LU Simon (2019), [446].
7 Ibid, [452].
8 (1998) 61 Con. L.R. 31.