Reasonable skill and care or fit for purpose?

The term ‘fitness for purpose’ means there is an implied condition that the product or service is reasonably suitable for the purpose intended (customer’s requirements, needs, or desires). The principle of fitness for purpose is basic and the properties must exist in the product or service regardless of any documented or verbal claim, sample or description (including test reports conducted on samples).¹ 

What this means is, that a product test report or product certification, even from any authorised and notarized certification body, does not imply that the product certified is ‘fit for purpose’ only that the specific product sample, as tested and inspected, complies with the requirements of the referenced test and/or manufacturing standard. 

The laws in most countries provide that, in the absence of any written terms and conditions to the contrary, a professional person will have a duty to act with ‘reasonable skill and care’. The common law test for negligence provides that a professional person is not negligent if they carry out their work to the same standard that another reasonably competent member of their profession would have met under the same circumstances.² 

By contrast, a fitness for purpose obligation imposes a higher duty because it is an absolute obligation to achieve a specified result, a breach of which does not require proof of negligence. This duty imposes implied terms on any seller acting in the course of business, that the products supplied will be of satisfactory quality and, where the purchaser makes known any particular purpose, are reasonably fit for that intended purpose. In a construction context, this means that a designer/contractor and/or supplier of products is effectively guaranteeing that the products and the installation will be fit for their intended purpose.² 

What consequences do these fit for purpose and duty for reasonable skill and care obligations have for suppliers of services and products that are used in the building and construction industry? 

Many professional designers’ standard terms of appointment make specific reference to and waiver of fitness for purpose requirements and often for the very good reason that the final purpose is not fully known or because what might be fit for purpose one day may change another day: For example, if a building is repurposed or renovated. This waiver in most cases protects the designer if the project doesn’t meet a client’s needs, provided always the designer has provided reasonable skill and care. Where the purpose is indisputable, such as the design and materials used for the construction of doors that should both open and close and be big enough for the purpose intended, or for compliant and effective life-safety equipment used in a large public building, it might be harder to deny the final purpose was not known: So, without a specific waiver, there might be some risk of liability for the designer. This raises some questions about organisations and authorities who do their own design or even specify their own performance standards. Can an organisation write a waiver of its own responsibility for fitness for purpose? Or can organisations rely on the established industry codes and national standards, even where these are ambiguous or do not deliver reasonable fitness for purpose in every situation? In the case of a manufacturer or supplier of services or products to a building project, where the application and end use are both well-known and indisputable, without any disclaimer or waiver of fitness for purpose, the service provider or product manufacturer/supplier/installer might be exposed to potential risk. 

In most cases, manufacturers and suppliers of products to a project will only claim the products made and supplied comply with respective product manufacturing and test standards. Often their terms and conditions of sale have clauses expressly excluding any general fitness for purpose. In some cases, product or performance standards are embedded in building regulation or mandated by relevant authorities having jurisdiction. However, many of these standards themselves include their own disclaimer, for example in the case of fire-resistant cable test standards BS 6387, BS 8434-2, BS 8491: ‘the fire tests do not assess a fire hazard, nor can the results of fire tests alone guarantee safety’.

In summation: 

• Designers in most cases require a waiver for design ‘fitness for purpose’. 
• Many installation contractors have contract acceptance clauses excluding ‘fitness for purpose’.
• Most manufacturers only claim compliance to respective product manufacturing and test standards.
• Certification and approval organisations only certify products to specific product and test standards.
• Most manufacturers of products or systems have terms of sale excluding any ‘Fitness for purpose’.
• Some of the common product test & performance standards themselves (fire-rated cables) have a disclaimer of ‘fitness for purpose’. 

In the aftermath of a disaster, the path to determine any negligence or liability often becomes convoluted. Is a product failure, which leads to a system failure, which leads to a loss of property and/or life, down to the negligence or failing of the manufacturer’s product? Or the inadequacy of respective manufacturing and test standards for the product? Or negligence of the project designer/specifier who may have specified the product or performance? Or any failing by the contractor who purchased and installed the product? Or the respective authority(s) having jurisdiction who specified the required product or performance standards? Or the installation inspector (if any)? Or the maintenance contractor? Or the building owner/project operator? Regrettably, too often responsibility and liability fall to the building owner/operator who simply wanted a fit-for-purpose system in the first place and, because they may not have the technical expertise, they employed professional designers for the project. In such cases, an argument could be made that a professional designer has at least a ‘duty of care’ to advise the owner if a design or specification they propose ‘is not’ or ‘may not’ be fit for the purpose intended. 

The fragmentation of roles, responsibilities and ultimately liability as described above, is exactly what was found in the final Grenfell Report by Dame Judith Hackett after the terrible Grenfell fire in London.³ What is indisputable in most cases, is what the project owner and their clients both want and need, and that is without doubt a fit-for-purpose solution. 

Buildings are systems and must be designed and built as a system,³ with system performance being the overarching requirement. We expect our motor-car engines and car brakes to work as a system. We expect every passenger jet airplane we fly in to work as a system, every appliance, computer and phone we use needs to work as a system. The requirements of ‘reasonable skill and care’ and ‘fitness for purpose’ are not mutually exclusive.² It is also worth noting that professional liability insurance can generally only be claimed where professional negligence has already occurred. 

With the knowledge learned in recent years, it is time to demand that at the very least, essential life-safety and firefighting ‘systems’ in buildings must work as a system, just as reliably as the brakes in our cars and the wings on the aeroplanes we fly in because, just like these systems, public lives depend on them working reliably. We might put four or five people in a car or 40 people in a bus or 300 people on an aeroplane, but we often put many thousands of people in high-rise buildings, underground shopping malls and metro tunnels. These people deserve the same duty of care and fitness for purpose for the installed life-safety systems upon which their lives may depend. 

Almost all life-safety and firefighting systems rely on essential wiring circuits to keep them working during an emergency. These wiring systems are simply a part of the life-safety system itself and cannot be considered as independent ‘stand-alone’ components that can be pieced together in a vague hope that the parts alone will work as a system when needed. This has proved to be a flawed assumption.^9,10,11 It is time to stop using or specifying small-scale ‘product only’ bench tests like: BS 6387 CWZ, BS EN 50200, BS 8434-2, BS 8491, IEC 60331^4,5,6,8 for emergency cable fire integrity performance, because none of these are ‘system tests’. All of these standards fire test ‘only’ the cable as a component. None test cables on a realistic scale. None test cables installed vertically. None test with realistic firefighting interventions. None test for or imply any fitness for purpose, so it would be a very long reach to claim for these cables, any ‘fitness for purpose’ on the results of these simple ‘product only’ tests alone.

The only full ‘wiring system’ fire circuit integrity test method and certification authority is Underwriters Laboratories: UL 2196.⁷ UL 2196 tests full wiring systems in a full scale 6m-tall by 7m-wide vertical furnace where cables are installed together with all their cable supports, fixings, joints and accessories. The full wiring system is fire tested to the ANSI/UL 263 fire time temperature curve for 2 hours with temperatures reaching 1,010°C and then immediately subjected to a full pressure 1¼ inch fire-hose stream test while fully energised at rated voltage. The cables tested are installed with five circuits in both horizontal and vertical configurations with bends and all five circuits must pass the test in both vertical and horizontal configuration. Cables alone are not certified, only the full wiring systems complete together with the cable, fixings, supports and accessories can be listed on the UL product iQ system as a FHIT wiring system. 

It would be accurate and defendable to say that, when cables and their complete installed wiring system are tested, certified and listed as a FHIT wiring system by UL (to UL 2196), they are in fact reasonably fit for the purpose intended in life-safety and firefighting systems within most public buildings. 

For more information on VITALink®MC UL 2196 wiring systems, go to: https://inbound.r-scc.com/firesafety-metric

References

1. Loomis Bros. Corp. v. Queen, 1958 Pa. Dist. & Cnty. Dec. LEXIS 269, 4-5 (Pa. C.P. 1958) https://definitions.uslegal.com/f/fitness-for-purpose/ 
2. Fenwick & Elliott. Understanding your design duty – “reasonable skill and care” vs. “fitness for purpose” Annual Review 2014/15 https://www.fenwickelliott.com/sites/default/files/annual_review_2014.pdf 
3. Secretary of State for Housing, Communities and Local Government UK. “Building a Safer Future Independent Review of Building Regulations and Fire Safety”: Final Report. May 2018 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file /707785/Building_a_Safer_Future_-_web.pdf 
4. British Standard BS 6387:2018 
5. British Standard BS 8434-2:2003+A2 
6. British Standard BS 8491:2008 
7. Underwriters Laboratories Standard UL 2196:2018 
8. International Electrotechnical Commission Standard IEC 60331-1/2:2018 
9. UL and ULC announce important changes to certification programs (Release 12PN-51) Sept. 12, 2012 https://www.ul.com/news/ul-and-ulc-announce-important-changes-certification-programs-release 12pn-51 
10. Arnold Dix. “Crisis of Crossroads”. Tunnelling Journal Oct/Nov 2012. http://uwchambers.com/wp content/uploads/2020/05/Tunnelling-Journal-Cable-Certification-Crisis-or-Crossroads-Oct-Nov 2012-issue.pdf 
11. FactWire “9 out of 12 electrical cable samples from major brands in Hong Kong fail fire test”. 23/1/18 https://www.factwire.org/investigation/9-out-of-12-electrical-cable-samples-from-major-brands in-hong-kong-fail-fire-test/?lang=en