The subject of this case study is the compliance issue of a floor covering product installed in a processing plant in Queensland.
On one side was the company who owned the facility (claimant) and the other was the contractor who installed the product (respondent). Christina was engaged to provide her expert opinion by the legal team representing the installation contractor.
The background to the case is that the initial product being installed had supply issues due to the Covid-19 pandemic. To avoid delays to the project timeline, an alternative flooring product was recommended and installed. A fire in the warehouse later triggered an investigation into the replacement product used.
Christina was asked to review the product, test certificates, fire hazard properties and assess whether the product was fit-for-purpose according to the NCC. She had to determine what the NCC requirements were at the time, review the previous Performance Solutions and compare what was supplied to what was installed.
Christina’s knowledge and experience prompted her to question the claimant’s lack of documentation, including previous Fire Engineering Reports and test data, which they claimed they did not have. However, during the proceedings, it was revealed that they did in fact have these documents and were required to share them.
It was found that the Fire Engineering Report had certain criteria that were not met by the replacement product, however, the product was installed prior to the report being written. Test reports for the replacement product were provided but no testing had been conducted on the original product.
After analysing the test results, Christina made recommendations for further testing. No additional testing or information was provided so there was nothing to challenge Christina’s report except for a legal technically where the contract specified that any replacement product needed client approval but there was no evidence of formal approval.
Christina insisted that both the original and replacement products needed to be tested in identical environmental conditions. The experts agreed on joint testing. This involved both parties agreeing to engage an independent expert to overlook the sample extraction, transportation and testing in an accredited laboratory. The test results revealed that the performance of original product was no better than the replacement product and that neither products met the criteria listed in the Fire Engineering Report.
As the court date loomed, the plant had a change in management and the two CEOs agreed to meet in arbitration. While the technical side we presented was strong and the evidence was good for the respondent (product installer), the loose contract requiring client approval placed some doubt on the case outcome. The plant had already spent millions of dollars removing and installing a product that not only had the same performance, but also did not meet their own Fire Engineering Report criteria. In addition to this, the uncertainty of the time needed to be spent in court and the uncertainty of the expert witnesses on stand, led to the two parties agreeing to settle out of court.
Key takeaways
- When choosing a product, a test report must be reviewed to assess the product suitability with the project requirements. This relates to original and replacement products.
- It is vital to review document dates. In this case, it was found that the product was installed before the Fire Engineering Report was written and so it could not be held to the criteria set there.
- Fire engineering report must be made available to all relevant stakeholders.
- Ensure contracts are sound and thorough.
- It is often worth stopping and getting a second opinion before taking legal action.