Drone accidents set to test advances in law
IT IS always fascinating to see how the law keeps up with technology. The latest challenge is how the law will deal with liability that arises from accidents caused by drones and self-drive cars.
Our common law is based on the Roman-Dutch system. The system is principled and flexible enough to cope with many modern advances.
It is amazing what the Romans thought of. While they had laws for things falling from or dropped from buildings and runaway unmanned chariots, undermanned aerial vehicles (UAVs) — drones — were obviously beyond their thinking.
While our common law easily adapted from horse carts to horseless carriages there is little to be found regarding autonomously moving vehicles or a drone autonomously operating through software-controlled flight plans to check the weather or the traffic.
Obviously if you are piloting a drone or a vehicle remotely you are as liable as if you were in the driving seat. Everyone is responsible for their own negligence. If you fly a drone and forget it has a limited battery life till it falls on someone you will bear the consequences.
But what if the fault does not lie with the person using the machine?
Although I am sure they weren’t thinking of it at the time, the drafters of the Consumer Protection Act have provided the potential solution. According to section 61, the producer or importer, distributor or retailer of any goods is liable for harm caused as a result of supplying any unsafe goods or a product failure in any goods. This liability arises irrespective of whether the harm resulted from any negligence on their part.
The scope of this section was illustrated in a recent high court case in Pretoria. A cyclist was badly burnt when he rode into a lowhanging live powerline spanning a footpath. The powerline belonged to a power utility. There was no evidence at the trial that the power company was responsible for the dangerous condition of the powerline. The only question was whether the company was strictly liable in terms of the Consumer Protection Act for the electrical burns suffered by the cyclist caused by the live powerline. With some additional foresight the Consumer Protection Act includes electricity and gas as goods under the act.
Another interesting bit of expansive drafting is that, although the Consumer Protection Act generally protects only individual consumers and small businesses there is no such limitation in section 61. Anyone, including any corporation, can claim for harm caused by the supply of unsafe goods, hazardous goods or even poor instructions accompanying goods sold. On this ground the Pretoria court found that the cyclist succeeded in his claim without proving any negligence.
If a drone or self-drive vehicle goes wrong and injures someone or damages property, the courts are unlikely to have any problem finding that the harm resulted from product failure or supplying unsafe or hazardous goods.
There should therefore be no gap in the chain of responsibility. Either the person in control of the vehicle or device was negligent in relation to the event or anyone in the supply chain (producer, importer, distributor or retailer) may be responsible for the consequences of harm caused by equipment that failed to perform if the user was not at fault.
This is what is known as strict liability and it overcomes the difficulty that claimants often have to prove that there was negligence in the manufacture of something that fails and causes harm. This nice blend of common law and statute law will provide recourse where none might otherwise have existed.
If retailers seek to unload this liability onto the buyer, the buyer will have to get insurance to cover this assumed liability. Whether you are making, selling or buying a drone or driverless car, make sure you have proper insurance.
Consumer Protection Act covers unsafe goods supply
Patrick Bracher (@PBracher1) is a director at Norton Rose Fulbright.