Nabarro Nathanson Workshop on Software Quality and the Legal System Friday 13th February 2004 Safety Related Systems: The Legal Framework Dai Davis Solicitor.

Nabarro Nathanson

Workshop on Software Quality and the Legal System

Friday 13th February 2004

Safety Related Systems:

The Legal Framework

Dai Davis

Solicitor and Chartered Engineer

Nabarro Nathanson

Overview What Software is Safety Related? The Legal System

Civil -v- Criminal law

EU background Product Liability Criminal Liability Personal Liability

Nabarro Nathanson

Range of safety related products

Nabarro Nathanson

Whose loss is it anyway?

Nabarro Nathanson

Types of Liability Civil

Contract Negligence Product liability

Criminal Health and Safety at Work etc act 1974

and related regulations Machine Safety, EMC Regulations

Nabarro Nathanson

Historical Perspective Harmonisation measure of EU Directive of 25 July 1985

Effective 25 July 1988

Consumer Protection Act 1987 Effective 1 March 1988

Nabarro Nathanson

PRODUCT LIABILITY Where DAMAGE is CAUSED by a DEFECT in a PRODUCT then CERTAIN PERSONS are liable for that damage

Nabarro Nathanson

Death or personal injury Property

Ordinarily intended for private use

Actually intended for private use

Damage

Nabarro Nathanson

PRODUCT LIABILITY Where DAMAGE is CAUSED by a DEFECT in a PRODUCT then CERTAIN PERSONS are liable for that damage

Nabarro Nathanson

“Damage wholly or partly caused”

Causation must be proved Strict liability? Comparison with negligence

Causation

Nabarro Nathanson

PRODUCT LIABILITY Where DAMAGE is CAUSED by a DEFECT in a PRODUCT then CERTAIN PERSONS are liable for that damage

Nabarro Nathanson

Defect Safety which persons are entitled to expect

Other circumstances Purposes for which marketed Instructions and warnings Reasonable use Time of supply

Safety of subsequent products

Nabarro Nathanson

PRODUCT LIABILITY Where DAMAGE is CAUSED by a DEFECT in a PRODUCT then CERTAIN PERSONS are liable for that damage

Nabarro Nathanson

Product Goods or electricity Component product Computer software?

Supply of hardware and software

Probable position

Nabarro Nathanson

PRODUCT LIABILITY Where DAMAGE is CAUSED by a DEFECT in a PRODUCT then CERTAIN PERSONS are liable for that damage

Nabarro Nathanson

PERSONS LIABLE Producer

definition

Persons use trade mark Business importer Supplier

fails to identify within a reasonable time

Individual employee? Consultant?

Nabarro Nathanson

EXAMPLE - THE WASHING MACHINE P Purchaser E End-

user

D “Own brand” retailer

C Manufacturer of complete

product

B Manufacturer of

component computer

Hardware H S Software supplier

supplier

A Software author

The links indicate the contractual

relationships between the parties.

Nabarro Nathanson

State of scientific and technical knowledge of a “typical” producer

Not such as to enable defect to be discovered

Not a test of reasonableness Importance of standards Importance of best practice

DEVELOPMENT RISKS DEFENCE

Nabarro Nathanson

Health & Safety at Work etc act 1974 Control of Substances Hazardous to

Health Control of Industrial Major Accident

Hazards Environmental Protection Act 1990 Water Resources Act 1991 Machine Safety regulations EMC regulations

CRIMINAL LIABILITY

Nabarro Nathanson

Determine whether liable (full or partial risk analysis)

Note the standards Warnings and instructions Contract out Seek an indemnity Development risks defence Records Insurance

HOW YOU CAN REDUCE LIABILITY

Nabarro Nathanson

The real problem - Product Liability

Distinction between Consultants and Employees

For criminal offences eg. Machine Safety eg. Electromagnetic Compatibility

PERSONAL LIABILITY

Nabarro Nathanson

Workshop on Software Quality and the Legal System

Friday 13th February 2004

Safety Related Systems:

The Legal Framework

Dai Davis

Solicitor and Chartered Engineer