New And Emerging Technologies: Challenging Existing Product Liability Rules

Author:Ms Isabel Foley and Domhnall Breatnach
Profession:Arthur Cox
 
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New and emerging technologies – such as autonomous, self-learning and artificially intelligent products, advanced robotics and the Internet of Things – are an increasing feature across a variety of sectors, including transport, healthcare, agriculture, IT, data management and communications. Such technologies offer a range of societal and economic benefits, from prevention of human error and failure, and improved safety, to increased productivity and economic growth. Although the existing EU and Irish product liability rules, which have been in place for many decades, have proven themselves reasonably flexible in adapting to the legal challenges faced by technological advancements in the preand early-digital age, new and emerging technologies present novel and more complex legal challenges. These new and emerging technologies raise a series of fundamental questions. Who is, and who should be, liable when they cause harm? Can the existing product liability rules be suitably adapted to accommodate these technologies and, if so, how?

The Liability for Defective Products Act 1991 (LDPA) implemented EU Directive 85/374/EEC on liability for defective products (the Product Liability Directive) into Irish law. The Product Liability Directive was adopted in 1985 – the same year the first .com Internet domain name (symbolics.com) was registered and Microsoft's Windows operating system was first released. Technologies have evolved dramatically since. In 1985, European lawmakers were clear in the view (as recorded in the recitals to the Product Liability Directive) that "liability without fault on the part of the producer is the sole means of adequately solving the problem, peculiar to our age of increasing technicality, of a fair apportionment of the risks inherent in modern technological production." This core principle of no-fault producer liability was expressed in simple terms in article 1 of the Product Liability Directive: "The producer shall be liable for damage caused by a defect in his product."

The product liability regime laid down by the Product Liability Directive may represent a reasonable and fair apportionment of risks in the context of traditional products, where producers exercise largely complete control over the design and manufacture of their products and can readily assess and foresee their risks. However, by comparison, new and emerging technologies present an array of additional challenges and risks for producers, which necessitate a reassessment of the existing liability regime. For example, in the case of...

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