Issues of civil liability arising from the use of expert systems

Abstract

Computers have become indispensable in all walks of life, causing people to rely increasingly on their accurate performance. Defective computer programs, the incorrect use of computer programs and the non-use of computer programs can cause serious damage. Expert systems are an application of artificial intelligence techniques whereby the human reasoning process is simulated in a computer system, enabling the system to act as a human expert when executing a task. Expert systems are used by professional users as an aid in reaching a decision and by nonprofessional users to solve a problem or to decide upon a specific course of action. As such they can be compared to a consumer product through which professional services are sold. The various parties that may possibly be held liable in the event of damage suffered by the use of expert systems are identified as consisting of two main groups, namely the producers and the users. Because of the frequent exemption of liability for any consequential loss in standard form computer contracts, the injured user may often have only a delictual action at her disposal. The faultbased delictual actions in SA law give inadequate protection to unsuspecting software users who incur ·personal and property damage through the use of defective expert systems since it is almost impossible for an unsophisticated injured party to prove the negligence of the software developer during the technical production process. For this reason it is recommended that software liability be grounded on strict liability in analogy to the European Directive on Liability for Defective Products. It is also pointed out that software standards and quality assurance procedures have a major role to play in the determination of the elements of wrongfulness and negligence in software liability and that the software industry should be accorded professional status to ensure a safe standard of computer programming.