UK Trends and Developments Contributed by: Juliet Stevens, Crown Office Chambers
strikingly, it sets out a liability regime that is far more favourable to claimants than that which it replaced. The most significant changes are as follows. • The definition of “product” now expressly encompasses intangible products, includ - ing software (whether integrated, standalone – including AI systems – or updates), digital manufacturing files (eg, those that con - tain instructions for 3D printing) and digital services integrated or inter-connected with a product (eg, traffic data services for a naviga - tion system). However, free and open-source software that is developed or supplied outside the course of a commercial activity is excluded. • Actionable damage now includes medically certified damage to psychological health that could require treatment, and the destruction or corruption of data used for non-profession - al purposes. • The categories of potential defendants have been expanded to include entities responsible for making substantial modifications to prod - ucts manufactured by another – eg, refurbish - ment within a circular economy – and online marketplace providers. • Express provision is made for claims to be transferred and assigned to third parties, which will likely increase the number of col - lective and/or representative actions. • Broad disclosure obligations, albeit restricted to that which the individual court deems “necessary and proportionate” , are imposed upon a defendant once a claimant has pre - sented a plausible case. Provision is made for specific measures to protect trade secrets. “Defect” is now defined not only by a lack of safety that a person is entitled to expect, but
also by the failure to meet standards of safety required under EU or national law. • Regarding AI, factors relevant to the assess - ment of defect include a product’s ability to learn or acquire new features, and cyberse - curity vulnerability. Insofar as a product has an “ability to develop unexpected behaviour” , the manufacturer will be liable for any such behaviour that causes harm. • A claimant’s burden of proof is expressly “alleviated” by operation of the following legal presumptions in a claimant’s favour. (a) Where a defendant is deemed to have failed to provide adequate disclosure and/ or is found to have failed to meet manda- tory safety requirements, defect should be presumed where a product obviously malfunctions in the course of reasonably foreseeable use. (b) Where a claimant has established the presence of a defect, and also that dam - age occurred of the kind that is typically caused by such a defect, a causal link will be presumed. (c) Where it would be excessively difficult for the claimant, in particular due to the technical or scientific complexity of the case, to prove the defectiveness or a causal link, or both, a claimant only needs to satisfy a court that a defect and/or cau - sation was “likely” . • Where personal injury allegedly caused by a defective product is “slow to emerge” , the limitation long-stop should be extended from ten to 25 years. Given that defect is now presumed in the absence of adequate disclo - sure, it is arguable that no prudent manufac - turer should destroy documentation until 25 years after a product has been placed on the market.
294 CHAMBERS.COM
Powered by FlippingBook