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Workshop on Software Quality and the Legal System Friday 13th February 2004

Workshop on Software Quality and the Legal System Friday 13th February 2004. Safety Related Systems: The Legal Framework Dai Davis Solicitor and Chartered Engineer. Overview. What Software is Safety Related? The Legal System Civil -v- Criminal law EU background Product Liability

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Workshop on Software Quality and the Legal System Friday 13th February 2004

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  1. Workshop on Software Quality and the Legal SystemFriday 13th February 2004 Safety Related Systems: The Legal Framework Dai Davis Solicitor and Chartered Engineer Nabarro Nathanson

  2. Overview • What Software is Safety Related? • The Legal System • Civil -v- Criminal law • EU background • Product Liability • Criminal Liability • Personal Liability Nabarro Nathanson

  3. Range of safety related products Nabarro Nathanson

  4. Whose loss is it anyway? Nabarro Nathanson

  5. 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

  6. 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

  7. PRODUCT LIABILITY • Where DAMAGE is CAUSED by a DEFECT in a PRODUCT then CERTAIN PERSONS are liable for that damage Nabarro Nathanson

  8. Damage • Death or personal injury • Property • Ordinarily intended for private use • Actually intended for private use Nabarro Nathanson

  9. PRODUCT LIABILITY • Where DAMAGE is CAUSED by a DEFECT in a PRODUCT then CERTAIN PERSONS are liable for that damage Nabarro Nathanson

  10. Causation • “Damage wholly or partly caused” • Causation must be proved • Strict liability? • Comparison with negligence Nabarro Nathanson

  11. PRODUCT LIABILITY • Where DAMAGE is CAUSED by a DEFECT in a PRODUCT then CERTAIN PERSONS are liable for that damage Nabarro Nathanson

  12. 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

  13. PRODUCT LIABILITY • Where DAMAGE is CAUSED by a DEFECT in a PRODUCT then CERTAIN PERSONS are liable for that damage Nabarro Nathanson

  14. Product • Goods or electricity • Component product • Computer software? • Supply of hardware and software • Probable position Nabarro Nathanson

  15. PRODUCT LIABILITY • Where DAMAGE is CAUSED by a DEFECT in a PRODUCT then CERTAIN PERSONS are liable for that damage Nabarro Nathanson

  16. PERSONS LIABLE • Producer • definition • Persons use trade mark • Business importer • Supplier • fails to identify within a reasonable time • Individual employee? • Consultant? Nabarro Nathanson

  17. 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

  18. DEVELOPMENT RISKS DEFENCE • 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 Nabarro Nathanson

  19. CRIMINAL LIABILITY • 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 Nabarro Nathanson

  20. HOW YOU CAN REDUCE LIABILITY • Determine whether liable (full or partial risk analysis) • Note the standards • Warnings and instructions • Contract out • Seek an indemnity • Development risks defence • Records • Insurance Nabarro Nathanson

  21. PERSONAL LIABILITY • The real problem - Product Liability • Distinction between Consultants and Employees • For criminal offences • eg. Machine Safety • eg. Electromagnetic Compatibility Nabarro Nathanson

  22. Workshop on Software Quality and the Legal SystemFriday 13th February 2004 Safety Related Systems: The Legal Framework Dai Davis Solicitor and Chartered Engineer Nabarro Nathanson

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