Lithium Batteries: Power comes with risk

Over the past few years we have seen a marked increase in the number of construction, property damage/business interruption and liability claims being pursued against our clients’ policyholders, (or on their behalf against a third party), where a fire is believed to have been caused by a lithium–ion battery.

Depending on the specific circumstances, the claims are usually framed as a claim in the tort of negligence and/or breach of contract. 

The issue of contractual liability will, of course, depend on the specific terms of the contract between the parties. However, indemnity clauses surrounding damage to property and consequential losses in construction contracts often, (but not always), only kick in where a degree of negligence or fault can be established.

Any claim in negligence will require evidence that the defendant has breached its duty of care to avoid acts or omissions which are reasonably foreseeable to injure or cause harm.

Whether or not this duty has been breached will, of course, depend on the specific circumstances of any case and a court would always carefully scrutinise all of the available evidence.

However, factors which would, in our view, be relevant to the court’s consideration of breach of duty are likely to include:

• the volume of combustible materials on the construction site at the time: for example, large timber-frame structures and the presence of any hazardous and flammable materials onsite
• whether the power tool manufacturer’s guidelines had been adhered to
• the content and detail of any Construction Phase Health & Safety Plan, Risk Assessments and Method Statements as regards the charging and storage of chargers containing lithium–ion batteries. These documents should, in our view, contain provisions concerning fire prevention in this context
• what specific instructions and guidance has been given to sub-contractors who might bring their own tools onto site.

Although the Joint Code of Practice on the Protection from Fire of Construction Sites and Buildings Undergoing Renovation (JCoP) does not specifically refer to power tools, we consider that, where the JCoP is applicable, a court would be likely to expect similar measures to be adhered to where power tool chargers contain lithium-ion batteries are used and would factor this into their analysis of breach of duty/breach of contact.

Measures could therefore potentially include lithium–ion battery chargers being stored in locations which are “suitably distant from structures and installations” and that they are situated “..a minimum of 10 metres from any buildings under construction, temporary buildings, combustible storage, and hazardous installations such as transformers, flammable liquid stores and liquified petroleum gas tanks”[1].

It should also be noted that, in such cases, causation is often one of the key issues in dispute. Where a fire has caused significant damage and destruction forensic scientists may well struggle to obtain sufficient physical evidence to establish the most likely cause of the fire. It might even be the case that the remains of the battery are too damaged for any meaningful inspection or analysis to take place.

Typically, fires associated with power tool chargers will occur whilst the tool is charging. However, insurers and construction professionals should be aware that, under certain circumstances, it is possible (albeit unusual) for the fire to be caused by a battery which is not on charge.

Sometimes the issue of whether or not a power tool had been left on charge will simply come down to witness evidence. This, of course, gives rise to a degree of litigation risk.

We recommend that those in the construction industry give full and proper consideration to this issue and ensure that any relevant documents and procedures are updated to include the risk of fires being caused by power tool chargers.

Speaking from the perspective of a lawyer, we would recommend that such procedures and discussions/decisions around them are meticulously documented and evidenced.