Increasingly, as construction lawyers, we are going to be spending our time dealing with issues of cladding. More particularly, ACP, or aluminium composite panels. And yet more particularly, where the meat in the aluminium sandwich is polyethylene, or at least 30% polyethylene.
So. Here’s the thing. As we discovered from the fate of HMS Sheffield in Falklands war, aluminium (which is the bread in these sorts of sandwiches) can catch fire if it gets hot enough. Furthermore, polyethylene is flammable at lower temperatures. It hardly ever happens, but if you get a really fierce fire going, ACP with a polyethylene core can, and very occasionally will, catch fire.
Let’s explore the “hardly ever happens” thing. My friend the barrister Liana Chan was giving the talk this week on the topic, and in chatting to her before this, I remarked that you are about a thousand times more likely to get struck by lightning than to get killed or injured by ACP cladding. She tells me that she passed on this observation (attributed to me) in her talk.
The “1,000 times more likely” was of course a figure of speech, rather than an exact calculation. If you start doing exact calculations and, in terms of the population of the world, it is a considerable underestimate. I calculate that over the past 30 years, when this sort of cladding has been in fairly widespread use, an average of about 3.2 people a year have been killed by it. By contrast, some 24k people a year are killed by lightning. And so the average citizen of the world is something like 13,000 times more likely to be killed by lightning than by ACP cladding. You may say, with some justification, that adjustment needs to be made to this factor. Most people in the world do not live in high-rise apartment blocks with ACP cladding, nor work in office buildings with ACP cladding. And so if you happen to live or work in a high-rise apartment building with ACP cladding, the odds shorten somewhat. You’re still much more likely to die by being struck by lightning (or for that matter, to trip up on the front door mat) then to be killed or injured by ACP cladding. Doormats, of course, kill relatively few. Solar panels kill far more. It is hard to come by reliable estimates, but at least one estimate puts the annual deaths in the USA alone from solar roof panels are between 100 and 150. Translate that as you will into worldwide terms: on any sensible analysis, solar roof panels are much, much, much more dangerous than ACP cladding on buildings.
So what is going on here? It is not hard to see the central issue:
- The Grenfell Tower disaster was manifested, in news terms, by horrific images. Some 70 people lost their lives. It was a terrible incident, for sure. News outlets and governments think alike. Something must be done.
- By contrast, deaths from solar panels typically happen one by one, as workers and homeowners fall off roofs to their death whilst they are installing or maintaining these things. None of these incidents gets much further than the local newspaper, if that. And anyway, solar panels are supposed to be “green”, and so the prevailing mood is that they are not to be subjected to any analytical criticism.
So much is obvious. Less obvious is what the “safety” game is really all about. All too often, safety does not mean safety from death or injury for the public at large. Rather, it means safety from criticism from the politicians and the public servants in question. A public servant who is charged with fire issues is concerned with the risk of him or her being criticised for not doing enough to eliminate fire risks. He or she is not concerned with other risks. He or she is concerned only with his own reputational skin.
So what happens is this. Wholly disproportionate measures are taken to address a risk that is so minute as to be unrecognisable in the context of the risks that we all bear in our lives every day. In proportion, minimising risks is a fine idea. If it is possible to reduce the infinitesimal risk posed by ACP cladding with polyethylene cores in ongoing buildings to an even more infinitesimal risk, that may not be so bad. Looking forward, the cost of changing the fire characteristic of the core for new buildings is relatively modest. But it is an entirely different kettle of fish to wage war on all of those existing buildings where the ACP cladding contains polyethylene in its core.
There are essentially two approaches to the existing buildings issue, equally bad:
- One approach is to require the owners of that building to strip the cladding off the building, and replace it. In the case of a typical apartment building, communally owned by the owners of each apartment, the bill is something of the order of $50,000 per apartment. Hard figures are hard to come by, but for sure, many apartment owners will not be able to afford such a bill. They may have negative equity in the apartment to start with. Such a bill will bankrupt them. Or just cause them to lose their apartment. The hardship will cause widespread depression, and the breakup of many marriages. There will be suicides. All for no good reason. And, one might add, the whole thing is a totalitarian oppression of freedom of people to choose how to spend their money. A more liberal society would say that people should not be legally obliged to spend so much money addressing the risk that is so infinitesimally small compared with the other risks that they face in their life.
- Another approach is to say that the government must pay. Which is another way of saying that the taxpayer must pay. Whichever way you put it, there is this: we know perfectly well that money spent in particular ways – particularly medical treatments – saves lives. If you spend money on a wild goose chase, that is money that is not going to be spent spending lives in another area. And so to spend money ripping the cladding off buildings which represent an infinitesimally small risk to its occupants is not to spend that same money on saving lives of people who need medical treatment.
Either way, waging war on existing buildings clad with ACP panels is a policy that will kill far more people than it will save.
Unhappily, we now live in a world which, to a significant degree, is not conditioned by real reality, but by virtual reality. What matters is not the objective truth, but what is the truth as promulgated by the media.
Interesting questions of law will arise. On any sensible analysis, ACP panels installed 10 or 20 years ago were fit for purpose when they were installed. But are they now to be treated as not fit for purpose, because societal attitudes have since changed? Is the Grenfell Tower fire a novus actus interveniens? These questions will keep lawyers busy for quite a while, I suspect.
Personally, I live and work in a single-storey property on the hill overlooking Myponga Beach. For me, the relevant risk is a grass fire. For that purpose, I now have a mobile fire pump which can draw water from my dam, or even my swimming pool. The risks of ACP are a purely professional matter.
 The figure is rather less if you take the full 50 year period since ACP was first used.
 They might, of course, choose to indulge in litigation against the contractors who installed the cladding, often in circumstances where the contractors were building precisely what they were contractually obliged to build by the designers. Such litigation is like to take years. One can only guess whether those who get embroiled in such litigation are even more susceptible to suicide.