Care Robots and Liability Issues Allocating damages inflicted by (self-learning) care robots

1. Care Robots and Liability IssuesAllocating damages inflicted by (self-learning) care robots Elbert de Jong LL.M. Centre for Intellectual Property Law, Molengraaff Institute for Private Law, Utrecht University, the Netherlands. E.R.deJong@uu.nl

2. Central question Roadmap of the RCC society working group: “it is important to find a balance between how and where RCCs fit the legal framework and how and where new legislation has to be drawn” How do we determine who is liable for damages in case of materialization of the uncertain risks of (self-learning) care robots?

3. Care Robots • Support people with disabilities and elderly and take care of people • Self-learning robots • able to interact • able to make autonomic decisions • Advantages: beneficial to (an ageing) society and people who are in need of care • Disadvantages: uncertain and unfamiliar risks • especially in the case of self-learning robots • harm might be inflicted upon patients • link with (e.g.) uncertain risks of nanotechnology

4. Liability rules I • What does liability law do? • If damage is caused to a person or an object through or by RCCs, rules on liability decide who, if anyone, is to provide monetary compensation • Which liability rules do we already have? • Fault liability • owner or robot? • blame / negligence required • Product liability • producers > defective (parts of) product • two possible defenses • Strict liability • owner or robot? • damage required / no fault Assessment of conduct Risk allocation Risk allocation

5. Liability Rules II • Are these rules sufficient with respect to self-learning care robots? • only product liability is EU-wide • rules were however not drafted with RCCs in mind and may not be fit or sufficient • uncertain whether they are applicable to uncertain risks • Second question: how to choose between several liability rules • and how to formulate rules…?

6. Choosing between liability schemes • Context • scientific possibilities a head of scientific knowledge • moment of choice is ex ante, increasing level of scientific knowledge • What should be the aim of the rules? • facilitate innovation and protect consumers (especially in health care) • prevention or compensation? > depends on the kind of losses • Making concrete rules • assessments of the amount and nature of the damage and risks • are the risks acceptable or not?

7. Problems with (self-learning) care robots Due to the uncertainty of the risks, their acceptability is difficult to asses, which complicates the choice between several liability rules. • but….. there are some solutions to consider….

8. Conclusions: three mindsets • Reducing the uncertainties • investigation duties for producers • precautionary approach? • state of the art defense • A dynamic system of rules is needed • scientific knowledge evolves, legal norms have to do the same • distinguish rules according to the type of risks or damage they regulate (e.g. unknown risks, uncertain risks, known and daily risks)

9. Conclusions: three mindsets • Discussion on the allocation of unknown and uncertain risks • Strict liability • producers? • consumers? • owners? • Society at large

10. E.R.deJong@uu.nl Questions or comments?