Comment: how safe is safe enough?

• United Kingdom

• Product liability and product recall

12-12-2017

Peter Shervington is a product liability specialist at Eversheds Sutherland. Peter has substantial experience assisting clients across multiple sectors to manage product safety and conformance issues, handle recalls and regulatory investigations and navigate major commercial disputes arising from product defects. Tightening regulations and an increasing drive towards user safety, combined with rapid technological changes have led Peter to become increasingly involved in assisting forward thinking clients to avoid and prepare for product safety crises through crisis management planning, compliance audits and management training. Here, he provides comment on a recent article published in The Washington Post. You can read the original article here.

This article touches on several critical issues affecting the whole field of automation.

Much of the world has adopted a product liability framework based around consumer expectations. An example of this is the EU Product Liability Directive (85/374/EEC), which holds manufacturers liable for injuries or damage to personal property arising as a result of their products failing to meet ‘the standard of safety persons generally are entitled to expect’.

There is thus a clear and urgent need to understand what standard of safety we are entitled expect in the brave new driverless world.

There seems little doubt that driverless cars will make human error-induced accidents a things of the past, and significantly cut incidents caused by issues relating to visibility and driving conditions.

Are we sure that these won’t simply be replaced by a new wave of fatalities and injuries stemming from software glitches, inter-vehicle communications issues or system hacking – and if so, how much of a rise in these areas is society prepared to accept for the benefit of eliminating driver-error?  

Governments and regulatory authorities are now beginning to engage with these questions. About time too: If driverless cars are to move forward towards the mass-market, the industry needs guidance from the authorities to help them understand and manage the risks to which they will be exposed.

What lies beneath the consumer safety and convenience of driverless vehicles – which is arguably their chief selling point – is a massive shift of the burden of risk from the consumer to the automotive industry. This must be recognised.

The assessment as to what is acceptable risk is complicated by famously warped public perceptions of risks: fear of flying is vastly more prevalent than fear of driving, yet recent statistics show that the odds of a UK citizen dying in a motor accident are 1/36,512 versus a 1/3.5 million chance of dying in a plane crash [1]. As noted in the article, the reaction to a very limited number of incidents affecting driverless vehicle trials suggests a similar gulf between public perception and reality. The speed of adoption of driverless technology will be heavily influenced by the way in which lawmakers and courts grapple with these issues.

Finally, there is the question of educating the vehicle user as to the appropriate use of driverless technologies. In particular, there is a need for a clear understanding and co-ordination between those designing and building automated systems, and those charged with marketing their labour-saving qualities of automated technology. Warnings and instructions for use are an integral part of the package as far as product liability law is concerned, and businesses providing inadequate warning of non-obvious risks or failing to provide sufficient instructions for use risk liability even if the product has been designed and manufactured perfectly.

[1] University of Oxford research quoted by the Economist  https://www.economist.com/blogs/gulliver/2015/01/air-safety.