Use
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Parts of
Section 3 of Hazards Forum, Safety-related systems,
Guidance for engineers, March 1995, Section 3 have
been reproduced with the permission of the Hazards
Forum. They are distinguished by paragraph numbers
included between brackets.
Information
has also been adapted from the UK
section of the European
Agency for Safety and Health at Work.
The section
is structured as follows.
[3.3] Legislation
in this area [of legal liabilities] is developing, and
is likely to continue to do so for some time. In parallel,
real cases are coming to the courts. These will both
clarify interpretation of some aspects of law, and,
probably, identify weaknesses in its formulation. These
cases should be monitored, since their outcome may affect
responsibilities of both employees and employers, in
both civil and criminal law.
[3.4] There
are important differences between criminal and civil
liability. Either or both might apply in a particular
circumstance. [...]
[3.5] UK
criminal law relating to product safety includes two
groups: that dealing with safety at work, based largely
on the Health and Safety at Work etc. Act 1974 (HSWA);
and that dealing with consumer safety, based largely
on Part 11 of the Consumer Protection Act 1987 (CPA).
Health
and safety legislation in the UK is made under the
power of various Acts
of Parliament. The Health and Safety at Work
etc Act 1974 (HSWA) is the main Act which allows
the Health and Safety Commission to bring in new legislationas
appropriate.
Most Statutory
Instruments (S.I.'s) relevant to health and safety
are made under the Health and Safety at Work etc. Act
1974 though others are issued under other Acts of Parliament.
Statutory Instruments can:
- amplify
existing legislation;
- introduce
new aspects;
- repeal
existing legislation; and
- modify
existing legislation
The following
Statutory Instruments can be obtained on-line from the
HM
Stationery Office:
[3.6] The
Act places a duty on employers to ensure, so far as
is reasonably practicable, the health, safety and welfare
of their employees (Section 2 of HSWA). It also requires
employers, employees, and the self-employed to ensure,
so far as is reasonably practicable, the health and
safety of other persons who may be affected by their
undertakings (Section 3). It places a similar duty on
manufacturers, designers and suppliers of articles for
use at work in respect of the people who use those articles
(Section 6).
[3.7] Failure
to comply with duties described in the HSWA is a criminal
offence and penalties can range from fines to imprisonment.
It is the duty of the Health and Safety Commission to
make appropriate arrangements for the general purposes
of the Act, while the Health and Safety Executive (HSE)
enforces the legislation. The Act empowers the Secretary
of State for Employment to make health and safety regulations,
which are normally proposed by the Commission.
The Railways
and Transport Safety Act 2003 is an Act to make
provision about railways, including tramways; to make
provision about transport safety; and for connected
purposes.
[3.8] The
Commission can also issue, with the consent of the Secretary
of State, Approved Codes of Practice (ACOPS) which give
practical guidance on how to comply with the Act or
Regulations. ACOPs are, along with all relevant standards,
admissible in evidence in any prosecution brought under
the HSWA. A defendant who had not complied with an ACOP
would have to prove compliance with the provisions of
the HSWA in some other way.
[3.9] The
HSE also produces booklets, leaflets and guidance notes
which contain detailed technical specifications, quantitative
guidance, and reference to standards. This guidance
has no legal status as such, although it is widely recognised
as setting desirable standards and may be relevant evidence
in any prosecution brought under the HSWA.
[3.10] The
application of standards is different in product sectors
covered by European Union "New Approach" Directives,
which, while ostensibly related to the removal of technical
barriers to trade, may have a strong health and safety
element. In general, products complying with a harmonised
European standard from CEN/CENELEC/ETSI are deemed to
meet the requirements of the relevant Directive(s),
and thus any national legislation. If products do not
comply with the standard then they must meet the requirements
of the Directive(s) in some other way. Several of the
current New Approach Directives relate to safety in
the workplace and several more are under discussion.
None deals with software as a separate issue. (See also
paragraphs 3.30 - 3.36).
[3.11] If
plant incorporating a safety-related system is designed
for use or operation at work, Section 6 of the HSWA
will apply. The designer, etc. will have to ensure,
so far as is reasonably practicable, that the hardware
and software designed and constructed for safe operation
of the system. This includes undertaking all necessary
research, testing and examination. It may not be necessary
to repeat tests and examinations carried out by other
persons in the supply chain, provided that it can be
demonstrated that the system is appropriate for the
purpose for which it is being supplied. All information
necessary for the safe operation of the system must
be provided.
[3.12] Whether
software is supplied as part of a system or provided
as a separate package, Section 3 of the HSWA will apply,
and there is a responsibility to ensure that use of
the software will not expose any people to health and
safety risks. As in Section 6, suppliers must carry
out or arrange for any necessary testing of what they
supply, to the extent that is reasonably practicable,
and must provide their customers with any necessary
information so that their use of it can be safe.
[3.13] Under
Section 2 of the HSWA, employers must provide, so far
as is reasonably practicable, safe plant and safe systems
of work for their employees, as well as adequate training
and information. In respect of PESs this will require
reasonable tests and checks on in-house programming,
and information and training for system operators.
[3.14] This
act is intended to enact the European Directive on Product
Liability, 1985. Section 10 of Part 11 of the Act makes
it a criminal offence to supply any consumer goods which
do not comply with the "general safety requirement".
[3.15] Non-compliance
with the general safety requirement occurs when a person
supplies, offers to supply or possesses for supply,
consumer goods which are not reasonably safe having
regard to all the circumstances. The circumstances which
will be taken into account in determining whether goods
are reasonably safe or not include:
- how the
goods are marketed, their packaging and presentation,
what marks are on the product, and what warnings or
instructions are given
- whether
any standards have been published which might apply
to the goods in question
- whether
there were any means by which the goods might reasonably
have been made safer, taking into account the cost
of so doing and the extent of the additional safety
provided.
[3.16] The
published standards referred to in 3.15 above are "any
standards of safety published by any person The courts
may therefore take into account, in determining whether
the general safety requirement has been met, not only
standards produced by ISO or BSI, or harmonised European
standards, but those produced by organisations in particular
industries, such as trade associations, and other bodies,
such as RTCA/EUROCAE.
The importance placed by a court on any given standard
will depend to some extent upon the importance credited
to the issuing organisation.
[3.17] It
is however a defence under section 10 of the Act for
the supplier to show that the feature of the goods leading
to the charge is directly due to compliance with requirements
imposed by law or by European Union obligations, or
that the feature of the goods in fact complies with
the relevant safety regulations or with standards of
safety approved by the UK government under such safety
regulations.
[3.18] Section
10 of the Act does not apply to goods intended for export
or to second-hand goods. Nor does it apply to retailers
if they had no reasonable grounds for believing that
the goods failed to comply with the general safety requirement.
[3.19] "Consumer
goods" are defined for the purpose of Section 10 as
"any goods which are ordinarily intended for private
use or consumption " but excluding a number of products,
such as motor vehicles and aircraft, food, water, gas,
drugs, and tobacco.
[3.20] In
addition to any terms expressly stated in particular
contracts, there are, under the Sale of Goods Act (1979),
two implied terms to a sale which may be of relevance.
The first (Section 14(2)) is that the goods supplied
are of merchantable quality. Such goods are defined
as goods which are "as fit for the purpose or purposes
for which goods of that kind are commonly bought as
is reasonable to expect having regard to any description
applied to them, the price (if relevant) and all the
other relevant circumstances." The second (Section 14(3))
is that of fitness-for-purpose, and applies where a
purchaser has either expressly or by implication told
the vendor any particular purpose for which the goods
are being bought. In this case, the implied condition
is that the goods are reasonably fit for that purpose,
even if the purpose is not one for which such goods
are commonly supplied. This requirement does not apply
where the circumstances show that the purchaser does
not rely on the skill and judgement of the seller, or
when it would be unreasonable to do so.
[3.21] In
non-consumer cases only, (i.e. cases where the buyer
is in business or where the buyer holds himself out
as being in business), sellers may attempt to contract
out of these provisions of the Sale of Goods Act, but
any such attempt is subject to the test of reasonableness
as set out in the Unfair Contract Terms Act 1977.
[3.22] There
is a degree of overlap between the two implied conditions
set out in 3.20 above, but the important point is that
both the concepts of quality and fitness-forpurpose
are present in a contract of sale. In the case of software,
whether embedded in a product, or used to control a
system, a material failure of the software to function
correctly would probably mean that it was not fit for
its purpose, and the supplier of the software would
accordingly be liable for breach of contract. Other
contracts such as hire and supply of services may contain
similar provisions: in these cases the Supply of Goods
(implied Terms) Act 1973 and the Supply of Goods and
Services Act 1982 are relevant.
[3.23] The
responsibility of a professional engineer to an employer
or client is to exercise reasonable care and skill in
accordance with the normal contemporary standards of
their profession. This is an implied term contained
in contracts for the supply of services. If, despite
the exercise of such care and skill, the outcome is
unsuccessful, the engineer will not normally be in breach
of a contractual duty. An exception to this will be
where there is a term (express or, in suitable circumstances,
implied) in the contract between the designer and client
that the design will achieve a certain purpose. A material
failure in this case will amount to a breach of contract.
[3.24] There
are instances where the engineer will be under contract
to design and supply. Here the duty is that of supplying
goods which are of suitable quality and fit for their
purpose, as in 3.20 above.
[3.25] If
a "person" (which, in law, includes a corporate body
such as a company) is injured, or their property or
goods are damaged or destroyed as a result of another's
negligence, they can recover damages in a civil action
for that negligence. The extent to which pure economic
loss arising from such negligence can be recovered is
at present uncertain.
[3.26] To
prove negligence, plaintiffs have to prove that they
were owed a duty of care, that there was a breach of
that duty, and that the loss or damage was a direct
result of the negligence. Quite often, these are not
easy to prove, and in consequence many injured persons
have received less than full compensation. For example,
although the law of negligence has developed considerably
over the past twenty-five years, generally in favour
of those making claims, if engineers can show that they
exercised the standard of skill normal to their profession
and acceptable at that time to their peers, it is unlikely
that they would be found negligent.
[3.27] A
significant change came about with the Consumer Protection
Act, 1987 which introduced a new product liability law.
Part 1 of the Act provides that people injured or suffering
loss to their private-use belongings as a result of
the failure of a product to provide the safety that
people generally are entitled to expect are to be compensated
as of right by the producer of the product without having
to prove negligence. However, there is no provision
in the Act for compensation for any consequential economic
loss suffered as a result of the injury or damage.
[3.28] Embedded
software produced by the manufacturer of a product will
attract liability just as much as the hardware. Software
produced by another party which is embedded in the product
or is used for the design of a product may be a more
complex matter. Depending on all the facts of the situation,
including the extent to which it was reasonable for
the manufacturer of the product to depend on the software's
correctness, the software producer may be liable.
[3.29] The
General Product Safety Regulations 1994 implement the
provisions of EC Directive 921591/EEC. They require
that products placed on the market are safe; that customers
are provided with information relevant to the risks
involved in the use of product; and that suppliers keep
themselves informed of factors which might affect the
safety of items they supply. There are also requirements
for distributors.
[3.30] The
law in individual states is for the most part based
on national legislation. Nevertheless some European
and even international standards may acquire legal status
through the essential requirements contained within
European Union (EU) "New Approach" Directives and harmonised
European standards.
[3.31] Individual
Member States transpose EU Directives into national
legislation. In the UK this is achieved by Statutory
Instruments (i.e. Regulations) under specific Acts of
Parliament.
[3.32] Regulations
may require the use of appropriate standards if these
exist. Under the "New Approach" Directives such standards
are identified as fulfilling the essential requirements
of a Directive, though their use is not mandatory.
[3.33] It
has been agreed that where harmonised European standards
exist, they will be adopted as national standards by
the standardisation bodies of all Member States.
[3.34] Where
CEN/CENELEC (and ETSI, for telecommunications standards)
have produced harmonised European standards in line
with essential requirements, these can be used to demonstrate
compliance with a particular Directive. It may be possible
to demonstrate compliance without recourse to harmonised
European standards, but this is likely to be more difficult.
[3.35] Some
ISO/IEC standards are adopted by CEN/CENELEC as harmonised
European standards.
[3.36] There
are very good reasons (including particularly the need
to demonstrate that appropriate actions have been taken)
for conforming to standards and regulations and for
following guidelines wherever possible, notwithstanding
the fact that compliance with standards is in principle
"voluntary".
[3.37] Insurance
can give limited protection against some civil claims:
specific advice should be sought from brokers specialising
in this field.
[3.38] A
defendant may claim that (for instance) best practice
was followed and the relevant standards applied. An
injured party may argue that "Strict liability" applies
and that it is not necessary to demonstrate negligence
on the part of the defendant, and that the defendant's
"best practice" argument is irrelevant. However although
it may not be an absolute defence, the "best practice"
argument may be used in mitigation. Note that strict
liability does not supplant actions for negligence.
[3.39] Mere
compliance with standards is unlikely to be regarded
as evidence that sufficient cqire has been taken or
that best practice was followed. It will be necessary
to demonstrate that the standards complied with are
relevant and appropriate to the system and the circumstances
in which it was to operate.
[3.40] Where
"best practide" arguments are used a well-prepared safety
case (see paragraphs 1.43 - 1.48) may be valuable.
[3.41] There
is an ethical debate alongside the legal debate. Individual
professional engineers may find themselves in conflict
with their employing organisations over the ethics of
a "best practice" defence. The argument of the injured
party, who is concerned solely with having suffered
because of a dangerous system, is very reasonable.
[3.42] One
of the defences against liability under Part 1 of the
Consumer Protection Act, 1987 is the so-called "development
risks defence" or "state of the art defence". This states
that the manufacturer may not be liable if "the state
of scientific and technical knowledge at the relevant
time was not such that a producer of products of the
same description as the product in question might be
expected to have discovered the defect if it had existed
in his products while they were under his control".
It will be far from easy to succeed in this defence.
[3.43] This
defence would appear to be quite generous depending
as it does upon what engineers "might be expected" to
do. It appears however that in introducing this defence
the UK government has been over-generous, as the wording
of the European Directive provides a defence only where
"the state of scientific and technical knowledge at
the time when [the producer] put the product into circulation
was not such as to enable the existence of the defect
to be discovered". This wording is far more stringent,
and proceedings are being taken against the UK government
for its divergence from the Directive. Engineers must
be wary of the more generous wording of the United Kingdom
Directive. When designing products for the European
market, they must allow for this greater stringency.
[3.44] In
determining whether the safety of a product is such
as persons generally are entitled to expect, "all the
circumstances shall be taken into account". Among the
circumstances included in the Consumer Protection Act,
1987, are "the manner in which, and purposes for which,
the product has been marketed .... and any instructions
for, or warnings with respect to, doing or refraining
from doing anything with or in relation to the product"
and "what might reasonably be expected to be done with
or in relation to the product".
[3.45] Warnings
and instructions as to the uses to which software should
or should not be put will therefore be useful, but will
not provide a complete defence if there is in fact a
programming fault in the software which causes damage.
However, if the software supplier can prove that warnings
and instructions were disregarded, then the partial
defence of contributory negligence will be available
under the Act, thus reducing the amount of damages awarded.
[3.46] In
addition, the proper use of warnings and, perhaps, instructions
that the customer should test the software if it is
to be used in certain situations, may also help where
the software producer, and the producer's customer (e.g.
the supplier of a complete system) are jointly and severally
liable to the injured party. In that situation the court
will apportion liability between the software producer
and the producer of the system in such manner as is
"just and equitable" under the Civil Liability (Contribution)
Act 1978. Putting some responsibility on the system
supplier may be helpful to the software producer in
such a case.
[3.47] Software
suppliers should aim to organise their activities so
that they are able to define the level of responsibility
which they are prepared to accept for a given software
product. If possible they should also carefully define
the purposes for which the software should or should
not be used.
[3.48] However,
a warning that it should not be used for certain purposes
might lead to problems. Such a warning could not possibly
cover all possible applications, and the omission of
one potentially hazardous application could, by inference,
be taken to mean that the product was suitable for that
application. A more general warning, on the lines of
"this product should not be used for control function
where malfunction could prove hazardous" might provide
a defence, but any such limitation would have to be
reasonable otherwise it could be seen as attempting
to shift the burden of responsibility from producer
to user to an unjustifiable extent. An injured party
may claim that such general warnings are irrelevant
and should not be taken into consideration, where the
product is in fact used in potentially hazardous circumstances.
[3.49] In
the European Union, plaintiffs in a civil case may be
able to bring their claim where any agreement states
a claim will be brought in the state where the defendant
is domiciled, where the defendants' branch or agency
is domiciled, or "where the harmful event occurs". This
latter may be either where the original act giving rise
to the damage occurred (the place of manufacture of
the defective product) or where the actual damage occurred
(the place of injury). Companies could therefore find
that they become involved in litigation in other EU
countries as well as the UK.
[3.50] A
plaintiff may indulge in "forum shopping", where, of
the several jurisdictions available to him, a plaintiff
may decide to go for the one with the best perceived
chance either of winning or of getting the highest possible
damages. The possibility of forum shopping is restricted
by treaties in the case of defendants who are domiciled
in certain European countries.
[3.51] Factors
affecting forum shopping include:
- levels
of damages customarily awarded in the various countries
- the extent
to which member states are likely to permit the recovering
of purely economic loss
- how long
it takes to bring cases to court
- costs
- availability
of witnesses
- (in cases
of product liability) the extent to which different
countries have derogated from the Directive with respect
either to imposing a maximum level of damages, or
to the "development risks" defence.
[3.52] Although
these factors are of relevance to the plaintiff when
choosing jurisdictions, nonetheless English courts may
not regard them as crucial in their determination of
which court is the appropriate forum for the case.
[3.53] Since
January 1994 the European Economic Area (which includes
all EU countries and all EFTA countries, except Switzerland)
has been in force and some European Community measures
apply throughout the Economic Area.
[3.54] In
the United States of America, on the other hand, the
rules are totally different. A company with manufacturing,
marketing and distribution operations in the USA will
be subject to the stringent US laws of warranty, tort
and strict liability, and the very heavy levels of damages
often awarded by American juries with all the concomitant
problems of obtaining insurance cover. The position
of a company which exports products to the USA through
a wholly-owned subsidiary which, however, has no assets,
or of a UK company whose components are used in US-manufactured
products is different again and, indeed, differs from
state to state.
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Health
and Safety at Work
The European Agency for Health and Safety at Work
(part of the European Commission) has prepared
a number of directives to protect the health and
safety of workers at work. The reference texts
of the main safety directives and other safety-related
directives can be obtained from their web site.
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Consumer
Safety
The European Commission has prepared a number
of directives to protect consumers. The reference
texts of the directives can be obtained from the
EU.
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Transport
Safety
The reference texts of the european directives
in the field of inland
transport, air transport and maritime transport
can obtained from the EU.
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