Whatever the law says, construction folk should raise an almighty stink when buildings such as hotels are not maintained to the latest standards. Public safety may depend on it
I thought shattered plate-glass doors and lacerations or worse were a thing of the past. Not so. Moira Japp went out onto the balcony of her hotel room and closed the sliding glass doors behind her. When the telephone rang she got up from her chair and made to go back to the room. You may guess what happened next. The consequent lacerations were awful. Japp sued for damages. The judge in the Brighton County Court awarded her those damages, though deducted 20% for contributing negligence and the other 80% against the company that booked her into that hotel.
Two things immediately are worth airing. You building and surveying folk responsible for maintenance of public buildings, or rather buildings that the public visit, are guardians of me, mine, my two scallywag, playful grandchildren, Archie and Luca, my 90-year-old mother-in-law too. You are experts in buildings - please report, whistleblow wrongful construction, or dangerous circumstances. Go on, do it. I know your employer will hate you for it, but raise hell! Look after me.
The hotel with the completely dangerous glass door was built in 1994 … with quarter-inch annealed float glass. Expert opinion given at the trial was that “the glass used in (the) aluminium sliding door was annealed float glass and this is known to be very dangerous”. The reply by the supplier of the doors ignores that remark. It told the judge that quarter-inch annealed float glass had “often been used in doors and windows … for commercial and residential purposes for many years”.
That remark makes you want to cry. And the expert for the defendant hotel booking firm said, “At the time of the accident there were no compulsory standards for glass patio doors and the use of quarter-inch thick annealed float glass does not constitute a breach of any local law or standard … so the hotel was free to install whatever glass patio doors they wished”. He added: “There are no laws obliging hotel owners to upgrade their glass to safety standards.”
At that I want to yell an expletive. Now then, what I haven’t told you is where this hotel is. I have told you that the trial was in the Brighton County Court. That’s because the outfit that booked the hotel on behalf of Japp is a UK company. But the hotel is in Barbados.
But, said the Court of Appeal, it is not the law that the construction has to be updated as standards change. If the structure was okay in 1994 but not now, tough
It was of course an English law contract. The duty of a tour operator booking agent comes within the Supply of Goods and Services Act. It includes a duty to exercise reasonable care not to provide a service that puts people in harm’s way. The task requires the contracting company to scrutinise the safety of the hotel. That’s a job for you building surveyors.
As to premises abroad, English law expects the premises to meet the safety standards applicable locally. Provided that sort of checking is done, there is no duty on an English company to boycott a hotel abroad because it lacks a safety practice to be found in an English hotel.
In this particular turn of events, the judge decided that the local standards had not been met when the place was built. Then went one further and said, “It seems to me that there is a continuing duty on a hotel to have regard to safety issues and if necessary update facilities.”
Well now, if that is right, you bet that it applies here to all buildings. Your job is to tear out the stuff that is not in compliance with what applies now, today; even those parts of the building that complied when it was built but have been overtaken by new safety features.
That approach by the judge was a step too far for the defendant. It came to the Court of Appeal. It decided that Japp was entitled to her award; it was correct that the glass doors did not meet the local standard in 1994. But, said the court, it is not the law that the construction has to be updated as standards change in later years. If the structure was okay in 1994 but not now, tough. “There is no duty to engage in a constant process of updating of existing buildings by rebuilding or refurbishment, so as to reflect changes in standards.”
Well, bully for the law! But if you are a building surveyor, a builder, an architect or engineer, ignore that no-duty stuff. Speak up, blow a whistle, keep Archie, Luca, Nana and you and yours safe … be a watchman for us.
Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple