Drone ac­ci­dents set to test ad­vances in law

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - Pa­trick Bracher

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.

Newspapers in English

Newspapers from South Africa

© PressReader. All rights reserved.