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Fire Risk Versus Commerce and Governance

Medico Legal

by David Townsend FIFireE, MCSFS,

Introduction

Fire investigation has for many years now been far more than only a matter of cause and origin. With the general increased awareness of the value of thorough and complete fire investigation its tentacles soon developed to include fire spread, materials, structure, systems, management and of course .... culpability.

In the UK the role of fire risk assessor, after the enactment of the Regulatory Reform Order, was thought by some to be a “Consultant’s charter” and regarded as a safe bet because the designated Responsible Person carried the can entirely.

Safe from legal consequences perhaps but those who had experience with the Coroners Courts were aware of the fact that the fire risk assessor was not so safe. Then, in 2014, a fire risk assessor was named and effectively blamed for the death of a young woman. It was only a matter of time.

From a fire investigator’s point of view a Fire Risk Assessor is just another contractor. Same as any designer, manufacturer or installer: If something he or she has or has not done may have been a contributory factor then it will be duly noted and reported.

This is another example of how fire investigation closes the feedback loop into many branches of the fire safety industry. It is one of the key drivers in the identification of fault and the subsequent improvement of products and systems. And of course liabilities.

But what about the fire investigator? Are we not also possibly culpable? Of course we are. Our reports are often crucial in the actions taken by others. Actions that may cost other parties their liberty and livelihood. Litigation is always potentially knocking on the door and where fire has been involved then there will probably be a fire expert behind it.

Risk assessment

Responsible persons AND risk assessors rightly carry a burden of culpability for their decisions. Those decisions may be called to account, if not in criminal or civil court then certainly by a coroner, at any time in the future. Even in retirement.

Risk assessment applies not only to the issue at hand but also to solutions to that issue. The world cannot be wrapped in cotton wool (even if fire resistant) so a degree of risk acceptance is unavoidable and a competent risk assessor will take that on board. Inexperienced risk assessment often results in blind adherence to applicable guides or codes plus extra measures just to ensure there is no come back on the assessor. It is added protection for the risk assessor but poor value for the client.

Recent experiences of fire risk assessment reviews by one of our fire investigators show that these are being done by people who have an H&S qualification and follow codes with little understanding of their implications. In addition, they have little or no fire experience and this leads to basic or generic statements covering fire risks on the assessment. Many actual fire risks are often missed leading to no measures being put in place to mitigate those risks.

Similarly, with site specific fire risk assessments, where the lack of fire knowledge tends to ignore things applicable to the emergency services such as access, communication and procedures should an incident occur.

A reasoned and logical risk assessment will be cognitive both of business and of governance issues. It will be practical and cost effective. Solutions can often be found by experienced experts that are a fraction of the cost of recommendations from others who may be dogmatically code-compliant and less experienced.

Commerce

However, the pressure of business and competitiveness in the private sector and the pressure of governance in the public sector are resulting in unacceptable risk, and the risk assessor or other relevant industry expert may be either complicit or ignored.

An example of worst practise is the Pinto scandal, USA, in the 1970s: Short term fixes for a known and fatal fire hazard were ignored on the basis that to recall and repair immediately would cost more than the projected compensation claims.

A more recent example is the Takata air bag recall: Industry experts had known of a defect that arose from a marginally cheaper but nevertheless standards- compliant production model but some major car manufacturers opted for the cheaper model. The result has been the biggest vehicle recall ever.

A household white goods manufacturer recently dealt with a known and identified fire hazard in the UK by opting for a home repair scheme rather than a recall. Of course it takes time for engineers to attend to each known appliance and the estimate to complete the task was of around nine months. As no surprise to many fire experts, there was a fatal fire caused by one such defective model before an engineer had visited the property.

Despite this, another white goods manufacturer subsequently opted for the same solution regime! Well…hot off the press….and at no surprise to any fire expert (except maybe those from the USA who attempted to defend the case), that particular model of appliance was only last month held by a Coroner to have been the cause of a double fatal fire.

As luck would have it, for want of a better phrase. I am one of the 3m owners of this model appliance. I wait with bated breath for the next phase of the manufacturer’s action plan. In the meantime, it remains unused in my garage as it has done from day one of the first Safety Notice.

Uber in Singapore has recently come under fire for apparently purchasing a fleet of electric vehicles with a known fire-related defect. But such headline cases often hide a huge weight of detail within which an effective and experienced fire expert may find clear evidence that there had in fact been no deliberate or culpable act by the accused.

Governance

Governance issues relate to research and fires that have led to known and proven defects to structures under regulatory, local or national government control. Here the problem is often the fact that redress of the issue is from public funds and this is not a bottomless pit. But there is also a great deal of feet-dragging. Not, hopefully, intentional. Persons ultimately responsible have high-piled in-trays. They may lack experience or appreciation of the danger, or they move on to other departments and new-comers must begin again.

Smoke screening, delay and “muddying of the waters” can result in an incident falling from public view.

In 2016 in Hong Kong, two fire-fighters died in two separate events, 24 hours apart at one single, continuous fire incident. This is unprecedented. There was clearly something wrong. The HK government and local authorities reacted swiftly and in apparent public view: They promised to appoint an independent expert. It did not happen. They emphasised strongly that if this had been a deliberate fire then, in honour of the deceased fire-fighters, they would leave no stone unturned. This was never likely to have been an arson fire and could not have been relevant to the fact that the two fire-fighters were killed 24 hours apart. I await the inquest. It has been well over one year already!

After the experts

Sometimes there is dispute or disagreement between agencies and authorities but while the dispute continues the status quo remains. Disputes are either resolved or there is a repetition which results in greater losses. Whichever comes first.

In this respect the Kings Cross London Underground fire was a good example: Following two previous fires in the Underground network at which only one life was lost, authorities and agencies having jurisdiction were unequivocally and emphatically warned by fire professionals that there was clear and present danger.

And of course now we have Grenfell Tower in London. I am limited in my comment because I believe it right and proper to await the public inquiry. It already is clear that the well known issue of flammable insulated cladding is a major factor, and that is bad enough given the known history. However these cases will always raise other issues and Grenfell will be no exception: Build and contractor quality, plastic window frames, internal refurbishment, care and maintenance, control and education of occupiers, etc.

It appears that the Grenfell fire had started in a kitchen and possibly at a fridge. This is yet another subject of substantial and proven study by fire professionals: Known fire defects and flammable insulation in many models. Defects that some manufacturers clearly choose to accept the risk or ignore unless made mandatory.

I once researched and proved a fire-related defect in an everyday household item. This resulted in a meeting at the UK Department of Trade and Industry with major retailers. It was assumed (or I had at least hoped) that the meeting would lead to agreement on safety labelling. At the very outset of the meeting one retailer asked “Are any proposals to be mandatory?” The answer from the Governance agency was “No”. There were no further meetings and once again the fire expert had wasted his time and was left hoping he would not have to say someday “I told you so”. Some years later two fire-fighters died in an incident directly related to the same product.

Maritime

In the maritime industry there are many known and proven (or predicted) concerns; ship condition, misdeclared cargo, Very Large Container Vessels (VLCV), Roll on Roll off Car carriers (RoRo), Very Large Ore Carriers (VLOC), crew training and competencies.

The business pressure on owners is considerable but the chances of a major incident leading to substantial and mandatory change appears rather low. Unfortunately the life risk is also low with many large ships requiring a complement of less than 25 crew. I described the life risk as “unfortunately” low. It is the loss of life that makes the headlines. It is the loss of life that makes mandatory change. But sadly it is too often a fact that there must be many lives lost before change is mandated.

Complacency

One by-product is complacency. When any industry or trade is allowed to continue without improvement there is likely to be a further drop in standards. When complacency reaches the highest levels of business or of Governance then other standards drop and a major incident is inevitable.

Complacency becomes one of the many steps that make up the “perfect storm” of a major catastrophe. One big, permanent step into what I term the “Incident Pit”. Once that pit is opened then the other factors that serve to render the pit inescapable can more easily fall in.

What to do?

Zero-tolerance policies and adequate training are cost-effective but this will only happen if the responsible persons can be convinced that, on their watch, a major loss will otherwise probably occur. Consciously or not many choose to survive on their luck. Hopeful that nothing will happen and that the sheer weight of fire experts, insurers and lawyers will not someday come crashing into their lives.

Perhaps risk assessment contractors should be better regulated and/or tested. Third party accreditation schemes can then apply but the fundamental principal of self-regulation in the Fire Safety Order is unaffected.

The responsible person may be defined in law or be determined by a Court. But there is moral responsibility: Anyone who has knowledge of a circumstance or issue that presents imminent or inevitable danger has, from that moment, ownership of that danger.

Fire experts have such ownership so we must continue to learn from our experience, to do our research, and to bang our drums. If we are silent for a minute then the perception (or excuse) will be that we have or had nothing to bang about.

In criminal defence, where the burden of proof in most Countries is “beyond reasonable doubt”, the scales of justice are clearly and dramatically tipped one way or the other. In civil matters the burden of proof is on “probabilities”. Now the experts are fully tested. Now the clients realise the value (or folly) of their original choice. Now the scales of justice are a true balancing act on which all detail is relevant. But there is no room for sitting on the fence. An expert is rightly expected to make a firm decision. To justify, prove and stand by that decision but to be open always to new evidence and review.

David Townsend

Principal Fire Investigator

Andrew Moore & Associates (S) Pte Ltd.

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