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Laying down the law

09 February 2017

Warren Spencer is one of the leading fire safety lawyers in the UK and has prosecuted more than 100 cases under the Fire Safety Order. Here, he explains how risk assessors can limit the extent to which they can be held liable under that legislation.

I AM continually asked about the extent of the liability of fire risk assessors under the Regulatory Reform (Fire Safety) Order 2005 (FSO). Unfortunately, there is no easy answer to that question.

Any potential liability stems from Articles 5(3) and 5(4) of the FSO. The fire risk assessment usually follows a contract between the person responsible for the premises and the fire risk assessor, under which the latter makes an assessment of the safety of the premises. On that basis, Article 5 (4) is satisfied. 

However, that liability is limited to the extent to which the fire risk assessor has control over the premises in question (see Article 5(3)). In addition, a fire risk assessment that is deemed to be not suitable and sufficient (Article 9) must have placed one or more relevant persons at risk of death or serious injury in case of fire (see Article 32(1)(a)).

As the vast majority of fire risk assessors are experienced, properly qualified and able to present their findings accurately in a written report, their risk of incurring any liability under the FSO in respect of a thorough and professional risk assessment would be low.

Risk assessment

For a prosecution of a fire risk assessor to succeed an enforcing authority would have to prove that:

  • • the fire risk assessment was not suitable and sufficient;
  • • the responsible person relied entirely upon the fire risk assessment provided and complied with its recommendations where relevant; and
  • • the shortcomings of the report placed one or more relevant persons at risk of death or serious injury in case of fire.

When it comes to the risk assessment, it is not possible to avoid criminal liability for a poor assessment by using clever legal disclaimers. It is, however, possible to clarify the exact nature of the assessor’s involvement with the premises through disclaimers, which are signed by the responsible person to ensure that he/she is in no doubt about the limited control passed to the assessor.

For example, if the fire risk assessor has no control over the ongoing management of the premises, once the report has been completed, this must be made clear. Nor should they be responsible for failure to act on significant findings. If the assessor is not satisfied with the amount of information they have regarding the management setup and running of the premises, they should say so in their report, or at least make it clear that certain information has not been provided. The same applies to their lack of control over staffing levels.

Many fire risk assessments are compiled without the assessor having had full access to the premises, or an opportunity to test for fire protection, or sufficient separation. Again, it should be made clear that findings may be based on visual observation only, without appropriate surveys being carried out. This may be for a number of reasons (not least the limited fee for the assessment and report agreed with the responsible person).

Reference should also be made to the requirements of third-party enforcement agencies, such as local authorities or building control, and whether or not the terms of instruction extend to those requirements.

The nature of the retainer between client and risk assessor is another key consideration. In all of the cases that I have dealt with involving risk assessors, whether prosecuting or defending, there has been a common theme: the terms of the retainer between the risk assessor and the responsible person were not clear. In the event of a prosecution, the retainer is the first thing the court will look at. It is therefore imperative that the terms are clearly agreed and evidenced either in the report, or in a separate terms and conditions document, so that the control of the premises is minimised to the correct extent and it is clear that the fire risk assessor has not adopted any unnecessary responsibility for the premises, which should remain with the responsible person.

The terms and conditions should also make it clear that any risk assessment should not be relied upon until the final document/assessment has been completed and signed by the risk assessor.

I have always viewed the risk assessment as a process rather than a document, and I believe that the process cannot be completed without proper liaison, discussion and agreement between the parties. I have seen a number of situations in which premises were inspected by the risk assessor, a risk assessment document was sent to the responsible person, and that document was then put in a drawer and never looked at again. But when the enforcement authority came knocking on the door, the inadequacies of that process were laid at the feet of the risk assessor.

In my view, this situation can be easily avoided by requiring the responsible person to sign properly constructed terms and conditions before any work is carried out.

Risk of death

For a risk assessor to held liable for placing relevant persons at risk of death or serious injury as a result of a fire an enforcing authority would have to prove that this was due to the shortcomings of the assessor’s report. Contrary to what many experts contend, the risk does not have to be a serious risk: any risk will suffice. 

Accordingly, the fire risk assessor must make it very clear that the responsibility for the ongoing management of the premises and even, if necessary, the decision to allow the premises to be used for its present purpose, remains with the responsible person. Liability for management procedures for, say, evacuation management, or maintenance of firefighting equipment or alarms, should not in any way be adopted by the fire risk assessor, because the ongoing management of the premises is not under their control.

Taking all of the above properly into consideration will ensure that the risk to the assessor of being held liable for placing relevant persons at risk of death or serious injury as a result of fire is tolerable. The following checklist is helpful in this respect:

Significant findings/action plan

Can your terms and conditions/retainer documentation be improved? Yes/No

Have you disclaimed any unnecessary potential liability? Yes/No

Can you show that your fire risk assessment is suitable and sufficient?  Yes/No

Is it possible that your report could place people at risk of death or serious injury? Yes/No

Warren Spencer is managing director of Blackhurst Budd Solicitors. You can see more articles from Warren at www.firesafetylaw.co.uk