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