• Designers and Builders Beware - New Technologies New Products New Risks
  • May 31, 2016 | Author: John R. Singleton
  • Law Firm: Singleton Urquhart LLP - Vancouver Office
  • Were it not for the advancement in building technologies and the introduction of new building products, we might still be living in caves. On the other hand, those who have been victims of failed new technologies and faulty new building products may conclude that living in a cave was not such a bad idea after all.

    Those “victims” include people responsible for specifying or employing the technologies and products in question, often because there was inadequate due diligence in selecting them or, sometimes, simply because the law concludes that they ought to have known better. Let me give some examples of such transgressions.

    All those involved in the building industry, of course, remember the asbestos problem. When the use of asbestos as a fireproofing material was first introduced into the building industry, it was widely accepted and used in tens of thousands of buildings to retard the spread of fire. As it turned out, the product was later widely condemned as presenting a health risk to occupants or workers when certain types of asbestos fibres became embedded in the lung cavity, resulting in various forms of lung cancer. So the manufacturers and distributors of asbestos became involved in thousands of lawsuits, which resulted in multiple bankruptcies and damage awards for bodily injury and property damage in the billions, if not trillions, of dollars.

    But it was not just the manufacturers and distributors who became the “victims” of these damage awards; it was also those who specified the product in the first place or who were responsible for its installation. Using or specifying the product when the available literature identified the human health risk of doing so amounted to negligence on the part of designers and builders or, at least, unreasonable reliance on the representations that had been made by the manufacturers and distributors. It was a very hard lesson for the industry. More recently, the leaky condo debacle in British Columbia dealt another hard lesson. Some would say a new building technology—face-sealed design—was the root cause of this problem, which generated more than 1,500 claims and $2 billion in damages. The design, a by-product of the energy crisis in the early 1980s, was seen as a panacea for solving energy inefficiencies by preventing infiltration of moisture into and exfiltration of warm air out of the building envelope. In practice, however, the technology allowed both phenomena, resulting in moisture buildup in the building envelope and subsequent rotting or rusting of structural components.

    Some would say there was a point in time when designers, builders and product suppliers should have known that this new technology, as well intentioned as it was, presented a foreseeable and unwanted risk to the structural integrity of the buildings incorporating it. If the exercise of due diligence would have disclosed this risk, then those responsible for incorporating this technology into buildings would face certain liability for the extensive costs incurred to repair those buildings.

    Multiple other examples exist where new building products or technologies have brought significant adverse financial consequences to both builders and designers. Many of these examples involve reliance on the certification of building products or technologies by certification agencies, both here and abroad.
    For instance, when it first appeared in the market, plastic-coated electrical cable was certified to be fire resistant. Certification resulted from laboratory testing that ignited cable in a horizontal tray and then measured the length of time it took for the fire to expire. This, according to many manufacturers and distributors, assured the industry that the product was safe to use. But in fact it was not.

    What the tests failed to take into account was that not all cables run only horizontally. Once in a while they have to rise vertically to enter into mechanical or electrical rooms to be affixed to the components they are designed to supply power to. In a vertical configuration, the cable was anything but fire resistant. It tended to act, according to experts, like a dynamite fuse, and rather than being fire resistant actually propagated the spread of fire. Cases that found their way into litigation demonstrated the importance of exercising due diligence in choosing new products, including satisfying oneself about the nature of the testing and certification by testing agencies.

    The case of manufacturing copper pipe illustrates a similar example. There have been instances of designers and builders relying on “seals of approval” found on copper pipe manufactured in other parts of the world. These “seals of approval” had been relied on by many as certifying that the pipe, as manufactured, was fit for its intended purpose. In fact, the seal represented nothing of the sort.

    If one were to have exercised due diligence and looked behind the “seal of approval”, one would have seen that all that was being certified was that the manufacturer of the pipe had the capability of manufacturing in accordance with applicable codes and standards, not that the pipe in question actually met those standards. To come to this realization after kilometres of copper piping had been replaced in a series of buildings was a rude awakening.

    It should be readily apparent from these examples that designers and builders should hesitate and exercise due diligence before accepting or adopting any new building product or technology to ensure they have a very clear understanding of any limitations to representations being made by those marketing these new products or technologies. The key is remembering that what you see, or what you think you see, is not necessarily what you get. Unless, of course, you live in a cave.