Safety in Critical DomainsHow to Allocate Liabilities for Failures Marta Simoncini | European University Institute
Safety in the risk societyRisk and uncertainty are relevant issues in the managementof scant resources Technological risks are the «secondary consequences» of industrial developmentRisk management aims at preserving and possibly enhancingthe expected living standards Trade off between risk and safety
Legal instruments for risk management Forward-looking Precautionary management of riskSafety Standards aimed at mitigating risks to the extent to which these can become acceptable in the risk society Backward-looking Risk is trasferred to the party who is in the best position to bear itLiability reparation and incentive to the correct functioning of the precautionary systemInsurance transfer of the risk in exchange of payment
Safety standards Thresholds beyond which the relevant community does not want to take a specific risk Rational management of risks aimed at making the trade off between risk and safety tenable
… but the possibility of failure cannot beexcluded completely…
Liability and software In case of failure of safety standards, who can be charged with liability?•the producer?•the user?•the standard setters?
Is the «regulatory compliance defence» comparable tothe «state of the art defence»?
Negligence and risk Negligence refers to failure to respect a due care standard Due care is related to the foreseeability of the risk with regard to a specific role and its tasks EFFECT OF COMPLIANCE WITH STANDARDS Who sets the standard? Private regulation proof of prudent behaviour (for the defendant), but the insufficiency of the standard can be challenged (by the plaintiff): the standard-setter can be found negligent. E.g., USA case-law on swimming pools and screening practices in blood transfusions Public regulation if «regulatory compliance defence» is comparable to the «state of the art defence», the liability of the producer can be ruled out USA: FDA preemption the public regulator (the State) can be liable for faulty supervision or regulation with reference to the state of the art Italy: Cass. Civ., III, 11609/2005
Strict liability and risk Related to the effects of a risk, not to misbehaviour EFFECT OF COMPLIANCE WITH STANDARDS Who is liable? The market (market share liability) in mass production pro rata liability of producers limited to the extent of the respective share of the market USA: DES cases (Sindell v. Abbott Laboratories, 26 Cal. 3d 588 1980) The State state compensation of damages stemming from the unforeseeable materialisation of risk with the aim to restore an equal distribution of public burdens e.g., France, Germany, Italy
Insurance and software Further means to transfer risksWhy is it difficult to insure software?
Insurance and risk The possibility of insuring against risks depends on the nature of the risk at stake foreseeable measurable: the amount paid by insured party must cover both risk and expected costs of providing coverage
Difficulties in assessing risks related to software Uncertainty of risk makes difficult to identify the advantage of risk bearingPotential catastrophic impact (e.g. automated ATM)
Discussion is very open….. Thank you very much!