The recent evidence of Mr Jonathan Sakula, an independent façade engineering expert, given to the Grenfell Tower Inquiry is likely to prove uncomfortable reading to any designers and contractors responsible for the specification and/or installation of combustible cladding and insulation products in high-rise residential buildings prior to the Grenfell Tower fire in 2017.
At the present time there are a large number of claims, either in pre-action stages or progressing through the TCC / arbitral tribunals, being pursued against design professionals and/or contractors seeking to determine, amongst other things, who should be held liable for the cost of replacing combustible cladding and/or insulation products installed to high-rise residential buildings.
In many instances the designers and/or contractors who specified and/or installed combustible cladding and insulation products in high-rise residential buildings have sought to defend such claims on the basis that they used reasonable skill and care in the specification of the cladding and insulation products based on the knowledge of the construction industry at the time. As such they assert that they are not in breach of their duty of care and are not liable for the cost of replacing such products.
However, one expert certainly considers that designers/contractors have a case to answer. In his expert evidence to the Inquiry Mr Sakula stated, amongst other things, that:
- given a number of serious and high profile fires around the world in the years preceding the Grenfell Tower fire, including seven fires in the UAE between 2012 and 2016 involving ACM cladding products, “the combustibility of these panels was, in my opinion, well known in the industry”;
- reasonably competent designers and contractors should have known foam cladding insulation products were combustible; and
- a failure to adequately consider the combustibility of the cladding and insulation products when designing the external cladding to a building "would fall below the standard expected of a reasonably competent practitioner in the cladding industry".
Whether a party used reasonable skill and care in the specification of the cladding and insulation products is of course fact specific and dependent on the circumstances. Further, the apparent manipulation of the product testing regime by the manufacturers of cladding and insulation products which obscured the actual combustibility of materials, has no doubt muddied the waters.
However, the satisfaction of a party's duty of care in relation to the specification of combustible cladding and insulation products is not as clear cut as many designers and contractors have sought to assert. Mr Sakula's evidence is another example of the arguments that may be raised by those pursuing claims to recover the cost of remedial works to remedy fire safety defects in their properties.
"I consider that failure to consider adequately the combustibility of the materials would fall below the standard expected of a reasonably competent practitioner in the cladding industry."