Is your legal case involving fire defects going around in circles?

For construction lawyers, getting an expert witness on any building defect type can be challenging, but when it involves a niche industry where education and quality levels over the years have been negligible or misunderstood, what happens then?  Water proofing, balustrades, or plumbing may be simple, but when the case involves passive fire defects, who is the ‘expert’ who can make sure your client doesn’t spend on unnecessary or incomplete reports and spend years of going around in circles.

Passive fire defects is a specialist area and therefore requires specialist advice.  A number of professions and trades can impact on passive fire or have some awareness but it still requires a specialist in this area to understand what is a defect, and then advise the most appropriate course of action for life safety and compliance, and consider the best method and potential cost of rectification works.

We have seen in most cases, all parties spend unnecessary money on unnecessary or imprecise reports because those prepared have not been suitable for what was required. 

In most cases, we’ve seen at least two reports that didn’t achieve any desired outcomes, and in at least one case they were both for the plaintiff because they weren’t sure what they were looking for in the first place.  The plaintiff will be up for a third report if they want a chance of a claim.  As a defendant, are there better means to achieve the desired outcomes?

How do you avoid an undue waste of time?  What are the biggest problems?  Where should you focus?  Should the report be general or specific?  Can you narrow the issues in dispute?

Consider these scenarios:

1. You want to know what passive fire defects are in a building

2. You want to itemise them, understand what is required to rectify

3. You want to understand the cost to rectify

4. You need to know the big ticket items

5. You want a practical report but based on building code requirements

Consider these building experts:

Building surveyor

1. Typically not a passive fire specialist

2. May list a number of items that appear to be defects in all areas of the building

3. Do they have a trade background?  Would they know what isn’t installed/built to the requirements of the tested systems?

4. Would they know how to rectify it?

5. If so, would they know the appropriate acceptable products to rectify?

6. Can they estimate the cost of defect rectification?

7. Would they know what defects are Dts or what requires a performance solution?

8. Can they prepare evidence of suitability if required?

9. Will they understand if life safety is under threat and issue a critical defect notice?

Fire Engineer

1. Typically not a passive fire specialist

2. Typically won’t understand the requirements of each installed DTS system or have research to support on DTS systems

3. Typically don’t have a carpentry/plastering/building or trade background and would not understand buildability issues

4. Typically not trained in building fire walls

5. Can they comment on the licensing requirements of each trade or know which trade is responsible for what and who can certify/approve/sign off?

6. Can they estimate the cost of rectification?

7. Will they identify the threat to life safety and issue a critical defect notice if required?

Passive fire specialist

1. What needs to be their instructions to achieve what you want?

2. Will their report be too general?

3. Will the report be too ‘legal’ and not practical?

4. Can they estimate the cost of defect rectification?

Get the right expert and the right instructions. It’s a niche industry which has involved minimal education with no specific training or regulation oversight until recently, and unfortunately misunderstood by the public, and usually with very large sums of money at stake, you need to get these things right for your client.

You also need to be able to understand the opinion of the expert, know that they understand independence and the codes of conduct.

And at the end of the day, it’s about making the buildings compliant and safe to ensure the life safety of the public. 

If you wish to obtain a discussion around your passive fire expert requirements BEFORE you embark on a long process with unnecessary costs to your clients, we can assist to steer you in the right direction.

Contact us on 1800 PASSIVE or plus@plus.systems and we’ll forward you a checklist to understand the requirements of your case, before getting back in touch with you.