tag:theconversation.com,2011:/global/topics/liability-11339/articlesLiability – The Conversation2023-06-23T12:29:14Ztag:theconversation.com,2011:article/2083622023-06-23T12:29:14Z2023-06-23T12:29:14Z3M offers $10.3B settlement over PFAS contamination in water systems – now, how do you destroy a ‘forever chemical’?<figure><img src="https://images.theconversation.com/files/533599/original/file-20230623-15-nsjvg7.jpg?ixlib=rb-1.1.0&rect=2494%2C1498%2C2997%2C2264&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">How long do chemicals really need to last? </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/pipetting-sample-into-multi-well-tray-royalty-free-image/482185539?phrase=chemicals&adppopup=true">Andrew Brookes via Getty Images</a></span></figcaption></figure><p>PFAS chemicals seemed like a good idea at first. As <a href="https://www.aps.org/publications/apsnews/202104/history.cfm">Teflon</a>, they made pots easier to clean starting in the 1940s. They made jackets waterproof and carpets stain-resistant. Food wrappers, firefighting foam, even makeup seemed better with perfluoroalkyl and polyfluoroalkyl substances.</p>
<p>Then tests started detecting <a href="https://static.ewg.org/reports/2020/pfas-epa-timeline/1998_3M-Alerts-EPA.pdf">PFAS in people’s blood</a>.</p>
<p>Today, PFAS are pervasive in soil, dust and drinking water around the world. Studies suggest they’re in <a href="https://doi.org/10.1289/ehp.10598">98% of Americans’ bodies</a>, where they’ve been <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7906952/">associated with health problems</a> including thyroid disease, liver damage and kidney and testicular cancer. There are now <a href="https://www.cdc.gov/niosh/topics/pfas/default.html">over 9,000 types</a> of PFAS. They’re often referred to as “forever chemicals” because the same properties that make them so useful also <a href="https://www.michigan.gov/-/media/Project/Websites/PFAS-Response/Reports/Report-2018-12-07-Science-Advisory-Board.pdf?rev=4a075fe29d794a3a942729557c4e6745">ensure they don’t break down in nature</a>.</p>
<p>Facing lawsuits over PFAS contamination, the industrial giant 3M, which has made PFAS for many uses for decades, <a href="https://www.prnewswire.com/news-releases/3m-resolves-claims-by-public-water-suppliers-supports-drinking-water-solutions-for-vast-majority-of-americans-301858581.html">announced a US$10.3 billion settlement</a> with public water suppliers on June 22, 2023, to help pay for testing and treatment. The company admits no liability in the settlement, which requires court approval. Cleanup could cost <a href="https://news.bloomberglaw.com/environment-and-energy/3m-heads-to-trial-in-existential-143-billion-pfas-litigation">many times that amount</a>.</p>
<p>But how do you capture and destroy a forever chemical?</p>
<p>Biochemist <a href="https://scholar.google.com/citations?user=fbJ7DGMAAAAJ&hl=en">A. Daniel Jones</a> and soil scientist <a href="https://scholar.google.com/citations?user=K5qNMk4AAAAJ&hl=en">Hui Li</a> work on PFAS solutions at the Michigan State University and explained the promising techniques being tested today. </p>
<h2>How do PFAS get from everyday products into water, soil and eventually humans?</h2>
<p>There are two main exposure pathways for PFAS to get into humans – drinking water and food consumption.</p>
<p>PFAS can get into soil through land application of biosolids, that is, sludge from wastewater treatment, and can they leach out from landfills. If contaminated biosolids are <a href="https://www.michigan.gov/mdard/environment/rtf/biosolids/gen/frequently-asked-biosolids-questions">applied to farm fields as fertilizer</a>, PFAS can get into water and into crops and vegetables.</p>
<p>For example, livestock can consume PFAS through the crops they eat and water they drink. There have been <a href="https://www.michigan.gov/mdard/about/media/pressreleases/2022/01/28/grostic-cattle-company-of-livingston-county-beef-sold-directly-to-consumers-may-contain-pfos">cases reported in Michigan</a>, <a href="https://www.washingtonpost.com/nation/2022/04/11/pfas-forever-chemicals-maine-farm/">Maine</a> and <a href="https://nmpoliticalreport.com/2021/12/21/dairy-farmers-facing-pfas-contamination-now-eligible-for-payment-for-their-cattle/">New Mexico</a> of elevated levels of PFAS in beef and in dairy cows. How big the potential risk is to humans is still <a href="https://www.ewg.org/news-insights/news/2022/04/ewg-forever-chemicals-may-taint-nearly-20-million-cropland-acres">largely unknown</a>. </p>
<figure class="align-center ">
<img alt="Two cows look over a wooden hay trough with a barn in the background." src="https://images.theconversation.com/files/479759/original/file-20220817-18153-uivgbk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/479759/original/file-20220817-18153-uivgbk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/479759/original/file-20220817-18153-uivgbk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/479759/original/file-20220817-18153-uivgbk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/479759/original/file-20220817-18153-uivgbk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/479759/original/file-20220817-18153-uivgbk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/479759/original/file-20220817-18153-uivgbk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Cows were found with high levels of PFAS at a farm in Maine.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/cows-with-high-levels-of-pfas-on-a-farm-royalty-free-image/1178310633">Adam Glanzman/Bloomberg via Getty Images</a></span>
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<p>Scientists in our research group at Michigan State University are working on materials added to soil that could prevent plants from taking up PFAS, but it would leave PFAS in the soil.</p>
<p>The problem is that these chemicals are everywhere, and there is <a href="https://www.michigan.gov/-/media/Project/Websites/PFAS-Response/Reports/Report-2018-12-07-Science-Advisory-Board.pdf?rev=4a075fe29d794a3a942729557c4e6745">no natural process</a> in water or soil effective at breaking them down. Many consumer products are loaded with PFAS, including makeup, dental floss, guitar strings and ski wax.</p>
<h2>How are remediation projects removing PFAS contamination now?</h2>
<p>Methods exist for filtering them out of water. The chemicals will stick to activated carbon, for example. But these methods are expensive for large-scale projects, and you still have to get rid of the chemicals.</p>
<p>For example, near a former military base near Sacramento, California, there is a huge activated carbon tank that takes in <a href="https://www.afcec.af.mil/News/Article-Display/Article/2530050/new-water-treatment-systems-address-pfospfoa-issues-at-former-mather-afb/">about 1,500 gallons</a> of contaminated groundwater per minute, filters it and then pumps it underground. That remediation project has cost <a href="https://www.afcec.af.mil/News/Article-Display/Article/2530050/new-water-treatment-systems-address-pfospfoa-issues-at-former-mather-afb/">over $3 million</a>, but it prevents PFAS from moving into drinking water the community uses.</p>
<p>The U.S. Environmental Protection Agency has <a href="https://www.epa.gov/newsreleases/biden-harris-administration-proposes-first-ever-national-standard-protect-communities">proposed establishing legally enforceable regulations</a> for maximum levels of six PFAS chemicals in public drinking water systems. Two of these chemicals, PFOA and PFOS, would be recognized as individual hazardous chemicals, with regulatory actions enforced when levels of either exceed 4 parts per trillion, which is substantially lower than previous guidance. </p>
<p>Filtering is just one step. Once PFAS is captured, then you have to dispose of PFAS-loaded activated carbons, and PFAS still moves around. If you bury contaminated materials in a landfill or elsewhere, PFAS will eventually leach out. That’s why finding ways to destroy it is essential.</p>
<h2>What are the most promising methods scientists have found for breaking down PFAS?</h2>
<p>The most common method of destroying PFAS is incineration, but most PFAS are remarkably resistant to being burned. That’s why they’re in firefighting foams.</p>
<p><a href="https://www.niehs.nih.gov/health/topics/agents/pfc/index.cfm">PFAS have multiple</a> fluorine atoms attached to a carbon atom, and the bond between carbon and fluorine is one of the strongest. Normally to burn something, you have to break the bond, but fluorine resists breaking off from carbon. Most PFAS will break down completely at incineration temperatures around <a href="https://www.regulations.gov/document/EPA-HQ-OLEM-2020-0527-0002">1,500 degrees Celsius</a> (2,730 degrees Fahrenheit), but it’s energy intensive and suitable incinerators are scarce.</p>
<p>There are several other experimental techniques that are promising but haven’t been scaled up to treat large amounts of the chemicals.</p>
<figure class="align-center ">
<img alt="Several pallets of bottled water sit while people prepare to put it into the trunks of SUVs picking it up." src="https://images.theconversation.com/files/533598/original/file-20230623-29-zc7t2v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/533598/original/file-20230623-29-zc7t2v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/533598/original/file-20230623-29-zc7t2v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/533598/original/file-20230623-29-zc7t2v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/533598/original/file-20230623-29-zc7t2v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/533598/original/file-20230623-29-zc7t2v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/533598/original/file-20230623-29-zc7t2v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Wayland, Mass., one of the cities that sued 3M, distributed bottled water to residents in May 2021 after elevated levels of PFAS were detected in its public water sources.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/because-of-the-elevated-levels-of-pfas-found-in-its-public-news-photo/1233087323?adppopup=true">Pat Greenhouse/The Boston Globe via Getty Images</a></span>
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<p>A group at Battelle has developed <a href="https://doi.org/10.1061/(ASCE)EE.1943-7870.0001957">supercritical water oxidation</a> to destroy PFAS. High temperatures and pressures change the state of water, accelerating chemistry in a way that can destroy hazardous substances. However, scaling up remains a challenge. </p>
<p>Others are <a href="https://doi.org/10.1016/j.jhazmat.2020.124452">working with</a> <a href="https://www.af.mil/News/Article-Display/Article/2009997/air-force-tests-plasma-reactor-to-degrade-destroy-synthetic-chemical-compounds/">plasma reactors,</a> which use water, electricity and argon gas to break down PFAS. They’re fast, but also not easy to scale up. </p>
<h2>What are we likely to see in the future?</h2>
<p>A lot will depend on what we learn about where humans’ PFAS exposure is primarily coming from.</p>
<p>If the exposure is mostly from drinking water, there are more methods with potential. It’s possible it could eventually be destroyed at the household level with electro-chemical methods, but there are also potential risks that remain to be understood, such as converting common substances such as chloride into more toxic byproducts.</p>
<p>The big challenge of remediation is making sure we don’t make the problem worse by releasing other gases or creating harmful chemicals. Humans have a long history of trying to solve problems and making things worse. Refrigerators are a great example. Freon, a chlorofluorocarbon, was the solution to replace toxic and flammable ammonia in refrigerators, but then <a href="https://www.pca.state.mn.us/air/chlorofluorocarbons-cfcs-and-hydrofluorocarbons-hfcs">it caused stratospheric ozone depletion</a>. It was replaced with hydrofluorocarbons, which now <a href="https://www.ccacoalition.org/fr/slcps/hydrofluorocarbons-hfcs">contribute to climate change</a>. </p>
<p>If there’s a lesson to be learned, it’s that we need to think through the full life cycle of products. How long do we really need chemicals to last?</p>
<p><em>This is an updated version of an article originally <a href="https://theconversation.com/how-to-destroy-a-forever-chemical-scientists-are-discovering-ways-to-eliminate-pfas-but-this-growing-global-health-problem-isnt-going-away-soon-188965">published Aug. 18, 2022</a>.</em></p><img src="https://counter.theconversation.com/content/208362/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>A. Daniel Jones receives funding from the National Science Foundation, National Institutes of Health, U.S. Department of Agriculture-National Institute of Food and Agriculture, U.S. Forest Service, and the U.S. Department of Defense Strategic Environmental Research and Development Program (SERDP).</span></em></p><p class="fine-print"><em><span>Hui Li receives funding from the Environmental Protection Agency, U.S. Department of Agriculture, and National Institute of Environmental Health Sciences.</span></em></p>PFAS can be filtered, but getting rid of the chemicals is a monumental challenge. A biochemist and soil scientist explain.A. Daniel Jones, Professor of Biochemistry, Michigan State UniversityHui Li, Professor of Environmental and Soil Chemistry, Michigan State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1915602023-01-31T06:13:07Z2023-01-31T06:13:07ZThe sharing economy can expose you to liability risks – here’s how to protect yourself<figure><img src="https://images.theconversation.com/files/505333/original/file-20230119-18-ivdjcl.jpg?ixlib=rb-1.1.0&rect=145%2C24%2C5222%2C3508&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/woman-sitting-back-car-smiling-getting-440912047">HTeam / Shutterstock</a></span></figcaption></figure><p>Sharing platforms have become a regular part of our lives for travel and daily needs, especially for young people. In 2018, Airbnb reported that the <a href="https://news.airbnb.com/new-data-the-airbnb-advantage/">majority of its users</a> were millennials. And with the ongoing cost of living crisis, more people may turn to these platforms as ways to save on their travel, or to make extra money by sharing their property.</p>
<p>Companies such as Airbnb and Turo (a car-sharing platform) are often more affordable and flexible than traditional hotels or car hire services. But using them can also expose you to liability risks if something goes awry. It might be tempting to assume that you are given the same <a href="https://catererlicensee.com/concerns-raised-over-airbnb-consumer-protection/">rights as a consumer</a>, but this is not the case.</p>
<p>When you hire a car through a traditional rental company, you enter a contract as a consumer and are protected under the UK’s <a href="https://www.legislation.gov.uk/ukpga/2015/15/contents/enacted">Consumer Rights Act 2015</a>. This guarantees you receive a safe and fit-for-purpose product or service, and certain rights to refunds. </p>
<p>But <a href="https://lthj.qut.edu.au/article/view/2419">on sharing platforms</a>, you are directly contracting with another consumer to provide and consume goods and services between yourselves. The sharing company simply provides an online platform to facilitate your contract. Its obligations to you are <a href="https://www.asherfergusson.com/airbnb/">limited to providing that service</a> – making its website available and processing your data (according to its privacy policy and GDPR rules).</p>
<p>Your rights and obligations on these platforms are therefore not covered by consumer protection regulations. Neither party is covered by the Consumer Rights Act, which only applies to business-to-consumer contracts.</p>
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<img alt="Quarter life, a series by The Conversation" src="https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<p><em><strong><a href="https://theconversation.com/uk/topics/quarter-life-117947?utm_source=TCUK&utm_medium=linkback&utm_campaign=UK+YP2022&utm_content=InArticleTop">This article is part of Quarter Life</a></strong>, a series about issues affecting those of us in our twenties and thirties. From the challenges of beginning a career and taking care of our mental health, to the excitement of starting a family, adopting a pet or just making friends as an adult. The articles in this series explore the questions and bring answers as we navigate this turbulent period of life.</em></p>
<p><em>You may be interested in:</em></p>
<p><em><a href="https://theconversation.com/five-things-you-can-do-to-save-energy-if-you-rent-your-home-195388?utm_source=TCUK&utm_medium=linkback&utm_campaign=UK+YP2022&utm_content=InArticleTop">Five things you can do to save energy if you rent your home</a></em></p>
<p><em><a href="https://theconversation.com/spotify-wrapped-how-sharing-your-music-tastes-can-drive-feelings-of-fomo-196825?utm_source=TCUK&utm_medium=linkback&utm_campaign=UK+YP2022&utm_content=InArticleTop">Spotify Wrapped: how sharing your music tastes can drive feelings of Fomo</a></em></p>
<p><em><a href="https://theconversation.com/moving-back-home-doesnt-mean-youve-failed-in-life-heres-why-187300?utm_source=TCUK&utm_medium=linkback&utm_campaign=UK+YP2022&utm_content=InArticleTop">Moving back home doesn’t mean you’ve failed in life – here’s why</a></em></p>
<hr>
<p>This means that if you suffer an injury while using someone else’s property or driving their car, the platform company is not legally obliged to compensate you. Your contract is with the other user (who is renting you their home or car), and it is they who have the legal obligation to compensate you for your injury or loss. </p>
<p>Likewise, if you list your property on a sharing platform, you expose yourself to personal liability towards anyone who is injured while using your property. The same goes for damage to property. As a guest you are personally liable for damage you cause to your host’s property, and as a host you can only claim against your guests for damage they cause, not the sharing platform.</p>
<h2>Taking risks</h2>
<p>Large platforms such as Airbnb do offer <a href="https://www.airbnb.co.uk/help/?audience=guest">dispute resolution centres</a>, which coordinate such claims. This can reduce the stress and hassle of having to go through court yourself. But even so, the chances of getting full recovery for your loss is uncertain, particularly if the loss is large. </p>
<p>It is also unlikely that standard insurance can help. Most personal insurance policies do not permit you to use insured property for commercial purposes, and will invalidate your policy if you are caught doing so without permission from your insurer. The same goes for assuming that you are insured for using another person’s property.</p>
<p>For vehicles, it is <a href="https://www.legislation.gov.uk/ukpga/1988/52/section/143">illegal in the UK</a> to drive without the driver having third-party insurance. Most likely the other party will not have commercial vehicle insurance in place to cover your driving, so you run the risk of driving illegally. </p>
<p>Turo requires that hosts maintain a valid insurance policy over the vehicle <a href="https://turo.com/us/en/policies/terms#specific-terms-for-hosts">at all times</a> in accordance with UK law. Guest drivers are not required to carry their own insurance – instead, they choose one of Turo’s protection plans. These plans cover vehicle damage and third-party liability claims, with policies from a company that is authorised and regulated by the Financial Conduct Authority, Turo told The Conversation.</p>
<figure class="align-center ">
<img alt="A young woman looking distressed talks on her mobile phone in a messy, ransacked apartment" src="https://images.theconversation.com/files/505343/original/file-20230119-23-nyqqpj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/505343/original/file-20230119-23-nyqqpj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/505343/original/file-20230119-23-nyqqpj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/505343/original/file-20230119-23-nyqqpj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/505343/original/file-20230119-23-nyqqpj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/505343/original/file-20230119-23-nyqqpj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/505343/original/file-20230119-23-nyqqpj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">If something goes wrong when renting out your space, how do you know you are protected?</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/attractive-sad-woman-talking-on-smartphone-1598495149">LightField Studios / Shutterstock</a></span>
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<p>Most major platforms will mandate third-party liability insurance. But pay attention to the excess amount, which may be much higher than your personal vehicle insurance, and can have an additional fee for processing claims. </p>
<p>For homes, you may be breaching either a term of your mortgage or your lease if you sublet on Airbnb. In the recent UK case of <a href="http://www.falcon-chambers.com/images/uploads/news/Bermondsey_Exchange_Freeholders_Limited_v_Ninos_Koumetto.pdf">Bermondsey Exchange Freeholders Ltd v Ninos Koumetto</a>, a court ruled that the tenant Airbnb host had breached the terms of his lease by subletting it. </p>
<p>Many platforms offer some sort of protection through their platforms, such as Airbnb’s <a href="https://www.airbnb.co.uk/help/article/3218">AirCover</a> for hosts and guests. But these are not the same as insurance policies, and don’t always <a href="https://www.airbnb.co.uk/help/article/2869">cover everything</a>. Airbnb’s <a href="https://www.airbnb.co.uk/help/article/937">host damage protection</a> only covers those losses not covered by another party, such as your home insurer or the <a href="https://www.airbnb.co.uk/help/article/2869">liable guest</a>. This means contacting your insurer and potentially causing it to invalidate your insurance policy if you have been sharing without the insurer’s consent.</p>
<p>In a statement, Turo told The Conversation: “Turo has made trust and safety the bedrock of our platform and our protections have consistently worked as designed.” Airbnb chose not to comment for publication. </p>
<h2>Protecting yourself</h2>
<p>Currently, sharing platforms are largely unaddressed by law and there is little regulators can do about their practices. But if you understand the risks you are taking, you can protect yourself from unpleasant surprises.</p>
<p><strong>1. Be familiar with your policies</strong></p>
<p>If your insurance specifically disallows commercial activities, get in touch with your insurer to clarify, or switch to another insurer with sharing-friendly policies. This is particularly important if you regularly use sharing platforms, as you risk both personal liability towards your guest and losing your cover for your property.</p>
<p><strong>2. Think about purchasing additional insurance</strong></p>
<p>Look for a policy that covers you specifically for these activities. This will protect you if you are injured and the other party cannot compensate you. If you cause damage to someone else’s property, you can rely on insurance instead of being personally liable.</p>
<p><strong>3. Read the terms and conditions</strong></p>
<p>While trawling through pages of legal jargon might be unappealing, it is important to know where you stand with these companies. This could be as quick as reading through the FAQs on their websites, or looking out for disclaimer and waiver clauses before you click “accept”. Platforms such as Airbnb offer region-specific <a href="https://www.airbnb.co.uk/help/article/1379">advice</a> on the laws and regulations for using their services.</p><img src="https://counter.theconversation.com/content/191560/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sally Shinan Zhu received funding from Leverhulme Trust in 2018-2021. </span></em></p>Before you rent out your home or car, make sure you are covered.Sally Shinan Zhu, Lecturer in Law, University of SheffieldLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1874362022-07-26T05:32:31Z2022-07-26T05:32:31ZWho’s liable if you’re injured or killed riding an e-scooter?<p>The rental e-scooter craze is sweeping the globe, with millions of the vehicles dotting pavements in <a href="https://assets.ey.com/content/dam/ey-sites/ey-com/en_gl/topics/automotive-and-transportation/automotive-transportation-pdfs/ey-micromobility-moving-cities-into-a-sustainable-future.pdf">more than 600 cities</a>. <a href="https://www.bbc.com/future/article/20200608-how-sustainable-are-electric-scooters">Studies predict</a> there will be 4.6 million shared e-scooters in operation worldwide by 2024. </p>
<p>While e-scooters <a href="https://www.mearth.com.au/blogs/news/why-electric-scooters-are-greener-than-you-think">have been praised</a> as a greener form of transport, they have also caused scores of injuries and even deaths. Australia’s e-scooter fleet is comparatively small at <a href="https://micromobilityreport.com.au/infrastructure/bike-scooter-share/2022-a-year-of-change/">around 10,000 units</a>, yet major hospitals in <a href="https://9now.nine.com.au/a-current-affair/melbourne-emergency-department-sees-escooter-injuries-daily/9cdd73d5-0bee-4546-ab65-2cf650201e5b">Melbourne</a>, <a href="https://www.abc.net.au/news/2021-07-22/electric-e-scooter-e-bike-injuries-brisbane-emergency-department/100313526">Brisbane</a> and <a href="https://www.abc.net.au/news/2022-07-15/warning-issued-to-escooter-riders-in-perth/101242834">Perth</a> are reporting “daily” presentations with e-scooter related traumas to both riders and pedestrians.</p>
<p>Worse, according to media reports at least seven Australians have been killed through falls or collisions since their <a href="https://raine.co/blogs/news/electric-scooter-trials">introduction in 2018</a>, including a <a href="https://7news.com.au/news/qld/queensland-boy-15-dies-five-days-after-suffering-critical-injuries-in-e-scooter-crash-c-7563230">15-year-old Queensland boy last week</a>.</p>
<p>Although the National Transport Commission <a href="https://www.ntc.gov.au/sites/default/files/assets/files/NTC-Decision-RIS-PMDs.pdf">recommended</a> in 2020 that e-scooters be limited to a speed of 10 km/hr on footpaths and 25km/hr on roads or bike lanes, most states have allowed higher speeds on footpaths.</p>
<p>Many riders also shun the helmet requirement imposed by the e-scooter terms of use and the <a href="https://www.legislation.sa.gov.au/__legislation/lz/c/r/australian%20road%20rules/current/2014.205.auth.pdf">Australian Road Rules</a>. It therefore seems that more carnage is on the horizon.</p>
<p>We need a uniform regulatory framework balancing the risks and benefits of e-scooters, and clarifying avenues for compensation.</p>
<h2>Who’s liable for e-scooter injuries?</h2>
<p>The <a href="https://pcc.gov.au/uniform/Australian-Road-Rules-10December2021.pdf">Australian Road Rules</a> empower the states to prohibit e-scooters on public roads and footpaths. Most states have banned them by default, but many local councils have authorised <a href="https://www.vicroads.vic.gov.au/safety-and-road-rules/road-safety-programs/e-scooter-trials-in-victoria">temporary trials</a>, which are still in effect. </p>
<p>Obviously, if you crash due to your own misuse or recklessness, you are personally responsible for your injuries or those you cause to others. </p>
<p>But if the accident is caused by a fault with the e-scooter, that might be different. Some of the e-scooter companies, such as Neuron, <a href="https://www.rideneuron.com/terms-of-service/au/">state that they exclude liability</a> for injury except where it’s caused by their negligence. </p>
<p>Where you’ve crashed due to uneven pavement or damaged road, the disrepair will generally need to be known or otherwise significant to prove the local council breached its duty of care to you. You would then seek compensation through the council’s public liability insurer. You would likely have to try to do the same if you trip over a dormant e-scooter that has been dumped in random locations, as they often are.</p>
<p>Third parties who are injured by an e-scooter rider are in a difficult position. This is because <a href="https://jade.io/article/67447">only parties to a contract</a> can incur rights and obligations under the contract. E-scooter contracts are between the user and the respective company, so those who are struck by e-scooters, or trip over a dormant one, have no contractual rights against the company.</p>
<p>An injured third party would have to sue the rider directly. But attaining the rider’s personal details could be difficult if they drive off or are evasive, and they will <a href="https://attwoodmarshall.com.au/escooter-laws/">likely be unable to pay compensation</a>. </p>
<p>Complicating matters is the fact minors also ride e-scooters. <a href="https://www.li.me/en-au/user-agreement">Lime</a> and <a href="https://www.rideneuron.com/terms-of-service/au/">Neuron</a> forbid minors from using their vehicles, but <a href="https://global-uploads.webflow.com/5b685812f109cf81a7d99e25/61b3143240d08942f78415ce_Terms%20of%20Services%20-%20Beam%20Australia%20(website)%20-%20December%202021.pdf">Beam</a> allows people under 16 to ride with parental consent. E-scooters are colourful, funky, and marketed in a manner appealing to young and likely inexperienced riders.</p>
<p>Each of the e-scooter companies’ terms warn that breaching the terms of use, such as riding as an unauthorised minor, can void insurance entitlements, meaning many unwary parents or caregivers may be left to foot hefty medical and legal bills.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/limes-not-lemons-lessons-from-australias-first-e-scooter-sharing-trial-108924">Limes not lemons: lessons from Australia’s first e-scooter sharing trial</a>
</strong>
</em>
</p>
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<h2>Excluding liability through the fine print</h2>
<p>When a user downloads and accesses the relevant app to activate an e-scooter, they agree to the terms of service. <a href="https://jade.io/article/68500">The law states</a> that you’re bound by the terms you sign (physically or digitally), even if you don’t read them – and <a href="https://www.theguardian.com/technology/2017/mar/03/terms-of-service-online-contracts-fine-print">most people don’t</a>. </p>
<p>Australia’s biggest e-scooter companies – <a href="https://www.li.me/en-au/user-agreement">Lime</a>, <a href="https://global-uploads.webflow.com/5b685812f109cf81a7d99e25/61b3143240d08942f78415ce_Terms%20of%20Services%20-%20Beam%20Australia%20(website)%20-%20December%202021.pdf">Beam</a>, and <a href="https://www.rideneuron.com/terms-of-service/au/">Neuron</a> – all have lengthy user agreements, each containing exclusion clauses. These clauses restrict or exclude the companies’ liability if you’re injured while using them.</p>
<p>But are they watertight?</p>
<p>It depends on wording. Beam’s agreement, for example, states that the company isn’t liable to users “for any death, disability or personal injury […] howsoever caused” arising directly or indirectly in connection with use of its e-scooters. Such statements, though broad, are <a href="https://jade.io/article/65000">generally sufficient</a> to exclude negligence liability. The reference to “indirect” injury also implies a user being injured by a third party (such as an errant rider, driver, or pedestrian) would have no recourse against the company.</p>
<p>However, the courts <a href="https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/1953/2.html&query=(white)+AND+(v)+AND+(john)+AND+(warwick)">have also said</a> that where liability can arise on two or more different bases – such as negligence and breach of contract – then you need to use more specific wording in your exclusion clause. Lime, Beam, and Neuron all mention negligence, so they would likely be covered.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1506797521493913600"}"></div></p>
<h2>Insurance as a panacea?</h2>
<p>Compulsory third-party insurance is <a href="https://www.qbe.com/au/news/ctp-explained">required</a> with motor vehicle registration in Australia. But this isn’t so with e-scooters, as they’re not classified as registrable vehicles. Extending the compulsory third-party insurance scheme to e-scooters might help resolve some of the liability questions that linger.</p>
<p>However, the <a href="https://mylicence.sa.gov.au/road-rules/riding_motorised_scooters">South Australian Government</a> has observed this isn’t possible because e-scooters don’t meet <a href="https://www.infrastructure.gov.au/infrastructure-transport-vehicles/vehicles/vehicle-design-regulation/australian-design-rules">national standards</a> that govern registrable vehicles.</p>
<p>While some home and contents insurance policies may offer some coverage for e-scooter injuries, this hasn’t been tested and young victims almost certainly won’t have this insurance.</p>
<p>Workplace insurance might also apply if the accident occurred on the way to, or during, work. Again, this will depend on the relevant policy and whether the rider was obeying all road rules and the e-scooter’s terms of use.</p>
<p>If a rider is hit by a car, the driver’s compulsory third party insurance would cover any resulting injury or death.</p>
<p>The e-scooter companies have started introducing third party liability insurance schemes which might protect riders from claims brought by, for example, injured pedestrians. However, the policies generally have numerous exclusions, such as where riders breach the terms of use (for example for not wearing a helmet or being underage).</p>
<h2>The need for a unified approach</h2>
<p>Multiple stakeholders are involved in rental e-scooter arrangements. From a regulatory perspective, state and local governments have a duty to consider and protect all members of the community when they allow and control e-scooter trials. The chosen approach can also impact redress mechanisms for those injured by e-scooters.</p>
<p>At the moment, there’s different approaches across Australia. So it’s essential that all levels of government work together to craft a uniform regulatory framework.</p>
<p>Additional safety measures can help curb the injury and death count, such as more precise “geofencing” to restrict e-scooters to certain areas and remote deactivation for breach of safety rules. Ensuring only those with a driver’s licence are authorised to ride e-scooters could also help, and this could be implemented by linking e-scooter app sign-up to state government licence databases.</p>
<p>In the meantime, law enforcement is critical to ensure riders are riding e-scooters in a safe and legal manner.</p><img src="https://counter.theconversation.com/content/187436/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Brown is a member of the Greens.</span></em></p><p class="fine-print"><em><span>Mark Giancaspro does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>We need a uniform regulatory framework balancing the risks and benefits of e-scooters, and clarifying avenues for compensation.Mark Giancaspro, Lecturer in Law, University of AdelaideDavid Brown, Co-Director, Bankruptcy and Insolvency Scholarship Unit, University of AdelaideLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1819692022-05-03T14:29:24Z2022-05-03T14:29:24ZIsrael: supreme court’s double standard on liability is unfair to Palestinians<p>One of the most basic and intuitive features that are expected of any legal system is to treat similar cases in a similar way. Sadly, when it comes to the law of negligence, Israel is not consistent in its treatment of Palestinians and other (often Jewish) citizens. </p>
<p>In the recent case of Plonim v The Palestinian Authority that was <a href="https://www.haaretz.co.il/embeds/pdf_upload/2022/20220410-172612.pdf">handed down</a> by the Supreme Court of Israel – its highest court – this liability gap was further widened. The court ordered the Palestinian Authority to compensate Israeli victims of terrorist activities, due to the fact that the Palestinian Authority provides support payments for individuals that Israel convicts of security offences. </p>
<p>This ruling, which comes at a time of growing tensions <a href="https://www.theguardian.com/world/2022/apr/29/israeli-police-and-palestinians-clash-at-al-aqsa-mosque-in-jerusalem">and clashes</a> between Israel and Palestine, is a step further in creating a liability regime of total liability of Palestine towards Israel. Israel, meanwhile, enjoys a near blanket immunity from liability towards Palestinians.</p>
<h2>A wider context</h2>
<p>In the past 40 years, Israel has <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4000631">increasingly expanded</a> its immunity from liability through legislation and court rulings, grounding a principle that it is not liable for any death, injuries or property damage it inflicts while engaging in combatant and counter-terrorist activities. This immunity regime exists in <a href="https://www.ejiltalk.org/the-war-on-compensation-troubling-signs-for-civilian-casualties-in-the-gaza-strip/">other jurisdictions</a> as well, such as Australia, Canada, the US and England and Wales. But what is unique and troubling is that alongside the ever expansive immunity Israel grants itself, its courts are constantly increasing the scope of the Palestinian Authority’s liability.</p>
<p>For example, in 2017, the <a href="https://supremedecisions.court.gov.il/Home/Download?path=HebrewVerdicts/13/440/021/o15&fileName=13021440.O15&type=2">supreme court ordered</a> the Palestinian Authority to pay damages to the estate of Amos Mentin, a telecommunications employee who was shot and killed by a 15-year-old Palestinian. The Palestinian Authority didn’t order the boy to commit this act of terrorism, nor did it supply the boy with the gun, or plan. </p>
<p>Why was it held liable? Because it operated a training camp in which the boy may have received some military training and – although no clear proof was provided – anti-Israel content was delivered as part of the training. The Palestinian Authority refused to supply evidence of the content of the delivered lectures, and consequently the court inferred that the talks were in fact encouraging terrorist activities. </p>
<p>To date, Israel has not been held liable for any terrorist activities that its civilian population engages in against Palestinians – even though 17-year-olds can undertake <a href="https://www.the-rampage.org/3612/features/gadna-an-authentic-idf-experience/">a week-long military training</a> aimed at readying young people for the Israel Defense Forces (IDF). Conscription to the military is mandatory for a duration of at least two years to the majority of 18-year-olds.</p>
<h2>The 2022 development</h2>
<p>In the Plonim ruling, the supreme court went a step further. One could accept the Mentin ruling as a failure of the burden of proof, which led to the conclusion that the Palestinian Authority encouraged terrorist activities. This conclusion is strenuous and technical, yet plausible. The Plonim conclusions are challenging and do not seem to share a similar plausibility.</p>
<p>Here, the estates of several individuals, who were killed in different terrorist activities, appealed a Jerusalem District Court decision to dismiss their claims for compensation. The claim had been against the Palestinian Authority for liability for Hamas’s terrorist activities that resulted in the deaths of the appellants’ relatives. The supreme court accepted the appeals and overturned the district court’s ruling. </p>
<p>The crux of the supreme court majority’s decision lies in the fact that the Palestinian Authority provides support payments to convicted terrorists and their families. The court views these payments as proof that the Palestinian Authority ratifies, condones and incentivises such terrorist activities. Under Israel’s <a href="https://www.nevo.co.il/law_html/law00/73015.htm">law of negligence</a>, it is possible to order an award of compensation against a person who didn’t cause an injury, but merely ratified the actions that caused it in retrospect.</p>
<h2>Expansion of liability</h2>
<p>The court’s conclusions in this case are a significant expansion of liability. The Palestinian Authority was not held liable for actively participating in the terrorist activities that resulted in the deaths of the appellants’ relatives. Nor was it held liable for providing the means, training, tools or funding for such activities to take place. Rather, it was held liable for providing payments that are deemed to communicate the message that these terrorist activities are legitimate. That’s it. </p>
<p>The court does not find the payments to be a way for the Palestinian Authority to claim “ownership” over the acts, as if they were done on its behalf. Instead, the payments are the equivalent of a statement of support of them.</p>
<p>The ruling also raises questions. If, for example, the Palestinian Authority were to post a message of support for the family of a convicted terrorist, would that also makes it possible for Israel to order it to compensate the victims of the terrorist attack, as the post ratifies the actions? That seems to be possible according to the Plonim case.</p>
<p>More importantly, if support payments made after the terrorist activities have taken place are sufficient to establish approval, then when security forces are standing idly by without stopping terrorist activities, that too should be considered as ratification. Yet when Israeli settlers <a href="https://www.youtube.com/watch?v=iqVutFavYUI&ab_channel=TRTWorld">engaged in terrorist activities</a> against Palestinian civilians under such circumstances, the courts didn’t hold Israel liable to pay for the damage caused.</p>
<p>It seems that there are two laws of negligence: one that applies to Israel and Israelis, and another that applies to Palestine and Palestinians. Whether a person who was injured during terrorist activities will be able to obtain compensation for their injuries becomes <a href="https://www.justsecurity.org/60803/discrimination-fight-terror/">a question of national identity</a> instead of being a question of law.</p><img src="https://counter.theconversation.com/content/181969/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Haim Abraham does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Recent decisions by Israel’s highest court establish a clear divide in the way it treats Israeli and Palestinian civilians.Haim Abraham, Lecturer in Law Faculty of Laws, UCLLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1680872021-10-12T12:10:41Z2021-10-12T12:10:41ZMedical errors keep killing patients – but there are laws, incentives and mindset changes that could reduce the death toll<figure><img src="https://images.theconversation.com/files/424078/original/file-20210930-24-1293pm3.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C6221%2C4156&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">It's estimated that up to 400,000 Americans die every year from medical mistakes. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/tired-doctor-or-upset-doctor-medic-cries-in-a-royalty-free-image/1263632983?adppopup=true">Vadzim Kushniarou/iStock/Getty Images Plus via Getty Images</a></span></figcaption></figure><p>Dr. Christopher Duntsch was a spine surgeon so reckless, incompetent or impaired that he’s now in a Texas prison. <a href="https://wondery.com/shows/dr-death/">Better known as “Dr. Death</a>,” Duntsch severed nerves, vocal cords and arteries that should not have been touched. He left patient after patient <a href="https://www.imdb.com/title/tt9179552/">maimed, paralyzed or dead</a>. </p>
<p>Moreover, his story exposes <a href="https://www.propublica.org/article/dr-death-christopher-duntsch-a-surgeon-so-bad-it-was-criminal">the inability or reluctance</a> of the medical community to stop him. Eventually, the Texas Medical Board did revoke his license. But three fellow surgeons, certain that Duntsch would simply move to another state and resume his career of carnage, implored the Dallas County district attorney to prosecute him. In 2017, a jury took just four hours to convict. Although sentenced to life in prison, Duntsch is <a href="https://www.oprahdaily.com/entertainment/tv-movies/a37035948/christopher-duntsch-dr-death-now-true-story/">up for parole in 2045</a>, when he will be 74.</p>
<p><a href="https://isearch.asu.edu/profile/275962">As a law professor and social psychologist</a>, I’ve been following the problem of patient safety for four decades. Some of my work was included in “<a href="https://global.oup.com/academic/product/closing-deaths-door-9780190667986?cc=ca&lang=en&">Closing Death’s Door</a>,” a 2021 book co-authored with my colleague, emeritus professor of law <a href="https://law.depaul.edu/faculty-and-staff/faculty-a-z/Pages/stephan-landsman.aspx">Stephan Landsman</a>. After studying the failures of the health care and legal systems, we have seen how certain legal innovations could improve patient safety.</p>
<figure class="align-center ">
<img alt="A photo of Dr. Christopher Duntsch, now serving a life sentence in a Texas prison." src="https://images.theconversation.com/files/424072/original/file-20210930-22-pg5d8m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/424072/original/file-20210930-22-pg5d8m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=748&fit=crop&dpr=1 600w, https://images.theconversation.com/files/424072/original/file-20210930-22-pg5d8m.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=748&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/424072/original/file-20210930-22-pg5d8m.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=748&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/424072/original/file-20210930-22-pg5d8m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=940&fit=crop&dpr=1 754w, https://images.theconversation.com/files/424072/original/file-20210930-22-pg5d8m.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=940&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/424072/original/file-20210930-22-pg5d8m.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=940&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Dr. Christopher Duntsch, a former Dallas surgeon, injured 33 of 37 patients over a two-year period. He is now serving a life sentence but is eligible for parole in 2045.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/NeurosurgeonDeadPatients/61499a92fb6745d980c84cdefa5df2c9/photo?Query=Dr.%20Christopher%20Duntsch&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=1&currentItemNo=0">AP Images/Dallas County Sheriff's Department</a></span>
</figcaption>
</figure>
<h2>Good intentions, horrific consequences</h2>
<p>The <a href="https://www.youtube.com/watch?v=WUydwrPAY-M">media’s fascination with Duntsch</a> is precisely because he’s such a bizarre outlier. </p>
<p>By contrast, the harm you might suffer in health care would likely be at the hands of a provider who is competent and well-intentioned. When something goes seriously wrong, it’s typically due to a small slip or oversight. </p>
<p>Still, the blunders can be devastating and are all too common. Examples go back decades: In 2006, when a <a href="https://www.latimes.com/archives/la-xpm-2007-oct-03-na-notcancer3-story.html">biopsy sample was mislabeled</a>, a Long Beach, New York, woman without breast cancer was misdiagnosed and got a mastectomy. In 2013, a Boston surgeon <a href="https://www.bostonglobe.com/lifestyle/health-wellness/2014/08/30/surgical-error-tufts-medical-center-prompts-widespread-changes-operating-rooms/8JFgKrx6FIvLLT6Uja2bkJ/story.html">misread a label</a> and injected the wrong type of contrast media into a patient’s spine; the patient died an agonizing death. And sometimes, <a href="https://www.tampabay.com/archive/2007/12/15/surgeon-chutzpah-overrides-checklist/">left and right</a> still get mixed up, even when the hospital has policies to stop wrong-location surgeries.</p>
<h2>Medical errors are a major cause of death</h2>
<p>Medical mistakes, and not the patient’s underlying condition, produce more deaths and injuries <a href="https://scholarlycommons.law.case.edu/healthmatrix/vol30/iss1/4">than all other types of accidents</a> in the U.S. combined. They are one of the <a href="https://doi.org/10.1136/bmj.i2139">leading causes of death</a>, behind heart disease and cancer.</p>
<p><a href="http://dx.doi.org/10.1377/hlthaff.2011.0190">Studies from the early 1970’s onward</a> estimate that about 200,000 to 400,000 Americans die from medical errors every year, perhaps more than 1,000 a day. By comparison, about 115 people in the U.S. die per day in <a href="https://injuryfacts.nsc.org/home-and-community/safety-topics/deaths-by-transportation-mode/">motor vehicle crashes</a>, 14 from <a href="https://www.bls.gov/news.release/cfoi.nr0.htm">workplace accidents</a> and approximately zero from <a href="https://injuryfacts.nsc.org/home-and-community/safety-topics/airplane-crashes/">commercial airliner crashes</a>. </p>
<p>And for every patient who died from a medical mistake, <a href="https://www.hup.harvard.edu/catalog.php?isbn=9780674558809">two more suffered moderate to severe injuries</a>. What’s more, all of those mistakes involved hospital patients only. The studies did not include errors at outpatient surgery centers or the doctor’s office, including prescription snafus or lab errors.</p>
<p>There have been glimmers of progress, but <a href="https://doi.org/10.1377/hlthaff.2018.0738">no major advances</a>. Despite decades of talk, hospitals seem unable to appreciably reduce preventable injuries and deaths. The persistent high numbers also suggest that conventional malpractice litigation has been inadequate as well. </p>
<figure class="align-center ">
<img alt="A doctor looks at an MRI of a spinal cord." src="https://images.theconversation.com/files/424090/original/file-20210930-22-ryr2i3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/424090/original/file-20210930-22-ryr2i3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/424090/original/file-20210930-22-ryr2i3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/424090/original/file-20210930-22-ryr2i3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/424090/original/file-20210930-22-ryr2i3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/424090/original/file-20210930-22-ryr2i3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/424090/original/file-20210930-22-ryr2i3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Shifting liability from caregivers to institutions would encourage organizations to create systems and processes with built-in accountability.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/doctor-royalty-free-image/671053832?adppopup=true">stevecoleimages/E+ via Getty Images</a></span>
</figcaption>
</figure>
<h2>Focus on organizations, not caregivers</h2>
<p>Humans inevitably make mistakes, but most patient safety advocates believe medical error is <a href="https://doi.org/10.1001/jama.1994.03520230061039">embedded in the systems, procedures and processes</a> of health care organizations, and are not simply the result of individual caregiver errors. </p>
<p>If the law’s focus of accountability – and liability – could shift from doctors and other caregivers to the hospitals where they work, that would push organizations to develop safer systems. A proposed legal approach, “<a href="https://doi.org/10.1017/S0098858800006419">enterprise liability</a>,” is intended to do exactly that: Every provider must belong to one or more health care organizations, which would be accountable for that practitioner’s work. When errors are made and patients are harmed, only the organization – not the practitioner – could be sued. </p>
<p>By refocusing accountability, health care organizations would be encouraged to choose personnel more carefully, train and supervise them better and invest more in safer systems. </p>
<h2>Negligence rewarded</h2>
<p>Perverse incentives at these institutions have impeded safety improvements. For instance, medical mistakes requiring additional care bring <a href="https://doi.org/10.1377/hlthaff.2011.0605">more revenue</a> to the very health care organizations that could have prevented the mistake. Erroneous injuries, however inadvertent, lead to financial reward.</p>
<p>This contributes to the inertia that many hospitals already have about making expensive changes. A hospital determined to be safer will spend time and money making those improvements, but success will mean a permanent reduction of its income. </p>
<p>That’s why making safety investments more attractive to hospital administrators is critical. <a href="https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalAcqCond/Downloads/FAQ-DRA-HAC-PSI.pdf">Medicare and Medicaid</a> now refuse to pay hospitals when patients suffer certain “hospital-acquired conditions.” Another possibility: “<a href="https://doi.org/10.1016/S0047-2727(00)00073-6">pigovian taxation</a>,” which recoups costs for those injured by medical mistakes – the safer the hospital, the smaller the tax. </p>
<figure class="align-center ">
<img alt="A surgeon and nurse inside the operating room using an X-ray machine" src="https://images.theconversation.com/files/424089/original/file-20210930-26-1fn0do.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/424089/original/file-20210930-26-1fn0do.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/424089/original/file-20210930-26-1fn0do.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/424089/original/file-20210930-26-1fn0do.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/424089/original/file-20210930-26-1fn0do.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/424089/original/file-20210930-26-1fn0do.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/424089/original/file-20210930-26-1fn0do.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Using equipment that is the same make, model and manufacturer across a hospital’s various operating rooms could help reduce medical mistakes.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/ray-machine-in-operating-room-nurse-positioning-arm-royalty-free-image/1251333198?adppopup=true">Antonio Marquez lanza/Moment via Getty Images</a></span>
</figcaption>
</figure>
<h2>Restructuring the system</h2>
<p>Most hospital systems, stunningly fragmented, could benefit from a redesign, perhaps modeled after <a href="https://psnet.ahrq.gov/primer/high-reliability">high-reliability organizations</a>. Exemplified by the commercial aviation industry, high-reliability organizations operate complex and high-hazard enterprises so effectively that errors are difficult to make – or, if made, are caught by computers or double-checking humans before harm occurs. </p>
<p>Technology, although a blessing, brings its own opportunities for error. At some hospitals, operating rooms contain the same equipment but different makes, models, designs and vintages. Staff must remember how to work the varied technology. If hospital equipment was consistent across operating rooms, the risk of error would be lowered. </p>
<p>[<em>Over 110,000 readers rely on The Conversation’s newsletter to understand the world.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=100Ksignup">Sign up today</a>.]</p>
<p>And then, the most direct kind of legal intervention: Closely monitor a limited number of high-profit, high-risk procedures. Regulators would receive risk-adjusted data on a caregiver’s performance; if mortality rates exceed acceptable levels, the regulator would terminate the provider’s authorization to perform the procedure. This has been done successfully in New York state with <a href="https://doi.org/10.1016/j.jacc.2011.12.051">coronary artery bypass graft procedures</a>. </p>
<p>A range of these innovations – in health care organizations, technology and law – hold the key to reducing the astonishing and tragic frequency of preventable deaths and serious injuries. Without such changes, the future of patient safety won’t be better than its past.</p><img src="https://counter.theconversation.com/content/168087/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael J. Saks does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Mistakes at the hands of health care providers are a major cause of death in the US. And many of the blunders are a byproduct of the system.Michael J. Saks, Regents Professor, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1641462021-07-08T22:24:59Z2021-07-08T22:24:59ZTrump can’t beat Facebook, Twitter and YouTube in court – but the fight might be worth more than a win<figure><img src="https://images.theconversation.com/files/410457/original/file-20210708-15-xqq91c.jpeg?ixlib=rb-1.1.0&rect=35%2C7%2C4753%2C3181&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Donald Trump at a press conference to announce a class action lawsuit against Facebook, Twitter, Google and their CEOs. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-u-s-president-donald-trump-speaks-during-a-press-news-photo/1327493802?adppopup=true">Michael M. Santiago/Getty Images</a></span></figcaption></figure><p>From <a href="https://time.com/4596770/donald-trump-reality-tv/">condo salesman to reality TV host to leader of the free world, Donald Trump</a> has occupied several lifetimes’ worth of identities over a remarkable career of reinventions. Even so, the billionaire mogul’s latest metamorphosis – <a href="https://www.reuters.com/world/us/trump-says-he-is-suing-facebook-twitter-google-claiming-bias-2021-07-07/">into a consumer-rights plaintiff seeking to regulate big business</a> – is a peculiar one.</p>
<p><a href="https://apnews.com/article/lawsuits-business-government-and-politics-c7e26858dcb553f92d98706d12ad510c">With a volley of lawsuits</a> against the operators of <a href="https://storage.courtlistener.com/recap/gov.uscourts.flsd.595800/gov.uscourts.flsd.595800.1.0_1.pdf">Facebook</a>, <a href="https://storage.courtlistener.com/recap/gov.uscourts.flsd.595801/gov.uscourts.flsd.595801.1.0.pdf">Twitter</a> and <a href="https://storage.courtlistener.com/recap/gov.uscourts.flsd.595803/gov.uscourts.flsd.595803.1.0.pdf">YouTube</a>, former President Trump is asking the courts to do what <a href="https://www.wsj.com/articles/as-a-businessman-trump-mixed-pragmatism-and-protest-in-dealing-with-regulators-1481198402">tycoon Trump once would have denounced</a>: tell some of America’s most powerful corporations that they have no choice who they do business with. </p>
<p><a href="https://www.jou.ufl.edu/staff/frank-lomonte/">As a First Amendment and media law scholar</a>, I believe the former president knows he can’t win in court. Here’s why – and why even his most ardent supporters don’t really want him to. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/410458/original/file-20210708-21-1yaw0un.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Screenshot of the Voice of America website headline, " src="https://images.theconversation.com/files/410458/original/file-20210708-21-1yaw0un.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/410458/original/file-20210708-21-1yaw0un.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=277&fit=crop&dpr=1 600w, https://images.theconversation.com/files/410458/original/file-20210708-21-1yaw0un.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=277&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/410458/original/file-20210708-21-1yaw0un.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=277&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/410458/original/file-20210708-21-1yaw0un.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=348&fit=crop&dpr=1 754w, https://images.theconversation.com/files/410458/original/file-20210708-21-1yaw0un.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=348&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/410458/original/file-20210708-21-1yaw0un.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=348&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">When Twitter banned Trump, it made headlines.</span>
<span class="attribution"><a class="source" href="https://www.voanews.com/usa/twitter-bans-trump-others-citing-risk-violent-incitement">Screenshot, Voice of America website</a></span>
</figcaption>
</figure>
<h2>Content moderation rules</h2>
<p>After the <a href="https://www.nytimes.com/2021/06/30/us/jan-6-capitol-attack-takeaways.html">Jan. 6 attack on the U.S. Capitol</a> by rioters bent on preventing Congress from certifying President Biden’s electoral win, all of the major social platforms – Facebook, Twitter and YouTube – <a href="https://www.axios.com/platforms-social-media-ban-restrict-trump-d9e44f3c-8366-4ba9-a8a1-7f3114f920f1.html">pulled the plug on Trump’s accounts</a>. The companies cited internal rules about misuse of their platforms to spread misinformation and incite violence.</p>
<p>Trump’s lawsuit barrage seeks not just to overturn his own bans but to invalidate a 1996 federal statute, <a href="https://www.eff.org/issues/cda230">Section 230 of the Communications Decency Act</a>, that entitles website operators to choose who and what appears on their pages without fear of liability. His attorneys are arguing – creatively, but I believe without much legal foundation – that the Communications Decency Act is unconstitutional in that Congress has given platforms too much speech-policing power.</p>
<p>Section 230 has been called the law that “<a href="https://www.propublica.org/article/nsu-section-230">created the internet</a>,” as it enables anyone who operates or uses a website – not, as Trump claims, only social media behemoths – to disavow responsibility for what outsiders come onto the site and say. </p>
<p>The law does enable YouTube to deactivate videos, or entire accounts, without assuming “ownership” of anything libelous that remains viewable. But it also allows the proprietor of a small-town news site to entertain reader comments without being considered the “publisher” of – and thus liable for – every scurrilous statement that ends up in the comments section.</p>
<p>Social networks have enforced their “content moderation” rules spottily and without much transparency. That’s a bad business practice, and it’s arguably unfair. But the Constitution doesn’t offer a remedy for all of life’s adversities. It certainly doesn’t offer one for Donald Trump here.</p>
<h2>Social media isn’t government</h2>
<p>Court after court has rejected the argument that because social networks are widely considered – <a href="https://scholar.google.com/scholar_case?case=285661631352488303&q=packingham+v+north+carolina&hl=en&as_sdt=40006">in the Supreme Court’s words</a> – “the modern public square,” speakers are entitled to demand access to their platforms just as they are entitled to use a physical public square. That’s not how the First Amendment works. </p>
<p>The protections of the First Amendment are triggered when a public agency exercises governmental power to restrict people’s speech – <a href="https://crsreports.congress.gov/product/pdf/R/R45650/1">what is known as “state action.”</a> On rare occasions, private organizations can be considered “governmental” – for instance, when a private hospital or university is given police power to make arrests on its premises. </p>
<p>But operating a video-sharing platform is not a “governmental” function – and judges have said so, <a href="https://legaltalknetwork.com/podcasts/make-no-law/2019/08/deplatformed-social-media-censorship-and-the-first-amendment/">unanimously</a>.</p>
<p>Conservatives, including Trump, cannot possibly want private businesses to be governed by the same constitutional standards that apply to cities and counties. If courts started applying the Bill of Rights to Walmart or McDonald’s just because they are large and powerful entities that control a lot of property, those establishments would be forced to welcome even the most disagreeable speakers – let’s say, a diner wearing a “F*** Trump” T-shirt – no matter how many offended customers complain. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/410461/original/file-20210708-27-2i3i8.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Twitter CEO Jack Dorsey, a man with bright blue eyes, brown hair and a wiry hipster beard, speaking on a monitor." src="https://images.theconversation.com/files/410461/original/file-20210708-27-2i3i8.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/410461/original/file-20210708-27-2i3i8.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/410461/original/file-20210708-27-2i3i8.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/410461/original/file-20210708-27-2i3i8.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/410461/original/file-20210708-27-2i3i8.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/410461/original/file-20210708-27-2i3i8.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/410461/original/file-20210708-27-2i3i8.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Twitter CEO Jack Dorsey and other Big Tech leaders testified virtually at a congressional hearing in October 2020 regarding Section 230 of the Communications Decency Act, which guarantees that tech companies cannot be sued for content on their platforms.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/of-twitter-jack-dorsey-appears-on-a-monitor-as-he-testifies-news-photo/1229328534?adppopup=true">Michael Reynolds-Pool/Getty Images</a></span>
</figcaption>
</figure>
<h2>Upending conservative gospel</h2>
<p>For decades, conservatives have <a href="https://www.npr.org/templates/story/story.php?storyId=112711410">fought</a> – quite hard and quite successfully <a href="https://reason.com/video/2019/09/05/corporations-and-the-first-amendment-free-speech-rules-episode-6/">in court</a> – to establish that corporations have First Amendment rights equivalent to those of living, breathing people. That includes the corporations operating social media channels. </p>
<p>In a recent <a href="https://www.taylorfrancis.com/chapters/edit/10.4324/9781003008828-9/legal-landscape-frank-lomonte">essay about democracy in the social media age</a>, I explain how the Communications Decency Act has evolved into the near-impenetrable liability shield that it is today. </p>
<p>In the essay, I describe how the proprietor of a hotel or tavern isn’t liable for harm caused by customers visiting the establishment – unless the customer has a known history of dangerousness that the proprietor chooses to ignore. That might offer a split-the-difference path for addressing the worst trolling behavior on social media by repeat bad actors – but, to be clear, it’s not the law today. </p>
<p>Today, the law unmistakably entitles the Twitters of the world to do just about anything with their customers’ posts: take them down, leave them up, add warnings or modifiers. If users are aggrieved by the way they’re treated, they can do exactly what they’d do in the offline world: Take their business somewhere else. </p>
<p>[<em>Understand key political developments, each week.</em> <a href="https://theconversation.com/us/newsletters/politics-weekly-74/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=politics-understand">Subscribe to The Conversation’s politics newsletter</a>.]</p>
<h2>Old news</h2>
<p>The Supreme Court already decisively dealt with this issue a half-century ago, when newspapers and television stations held power over political discourse comparable to that of Facebook and Twitter today. In the case, Miami Herald Publishing Co. v. Tornillo, <a href="https://www.oyez.org/cases/1973/73-797">the justices rejected</a> a state legislative candidate’s insistence that he was entitled to space in the local newspaper to respond to criticism in two editorial columns. </p>
<p>While the justices acknowledged that a big-city newspaper might have a near-monopoly over information about local elections – sound familiar? – they agreed that the First Amendment would not tolerate commandeering the presses of a private publisher in the interest of government-enforced “fairness.”</p>
<p>A federal judge in Florida, relying on the Tornillo case, just <a href="https://www.reuters.com/world/us/federal-judge-rules-florida-social-media-law-likely-violates-free-speech-2021-07-01/">ordered</a> the state not to enforce a newly enacted “anti-deplatforming” law enabling any Florida political candidate whose social media posts are hidden, modified or deactivated to sue the platform. The judge concluded that the law violates the First Amendment rights of the platforms by (for example) compelling platforms to let candidates post anything they want, without moderation. “Balancing the exchange of ideas among private speakers,” the judge wrote, “is not a legitimate governmental interest.” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/410465/original/file-20210708-23-1mvvz0z.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="The top of the U.S. Supreme Court building." src="https://images.theconversation.com/files/410465/original/file-20210708-23-1mvvz0z.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/410465/original/file-20210708-23-1mvvz0z.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/410465/original/file-20210708-23-1mvvz0z.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/410465/original/file-20210708-23-1mvvz0z.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/410465/original/file-20210708-23-1mvvz0z.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/410465/original/file-20210708-23-1mvvz0z.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/410465/original/file-20210708-23-1mvvz0z.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">‘The Supreme Court,’ writes the author, ‘already decisively dealt with this issue a half-century ago, when newspapers and television stations held power over political discourse comparable to that of Facebook and Twitter today.’</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtVirginaElections/5706504e66dc42a79040fa3de4ea5e25/photo?Query=U.S.%20Supreme%20Court%20building&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=749&currentItemNo=513">AP Photo/Patrick Semansky</a></span>
</figcaption>
</figure>
<p>No one involved with this case could be serious about winning in federal court. But that is not the “court” to which the former president is playing. </p>
<p>Tilting at Silicon Valley appeals directly to Trump’s populist followers, many of whom <a href="https://nymag.com/intelligencer/2018/07/twitter-is-not-shadow-banning-republicans.html">probably suspect</a> that their own clever tweets failed to go viral only because the system is rigged against them. </p>
<p>But even if, as experts <a href="https://www.nbcnews.com/think/opinion/trump-sues-facebook-google-twitter-class-action-lawsuits-sure-fail-ncna1273289">suggest</a>, Trump’s case is destined to fail, dismissal would be yet another headline and fundraising hook, along the lines of, “You knew those socialist judges were in Hillary’s pocket.” And even if Trump were ordered to pay Twitter CEO Jack Dorsey and Facebook CEO Mark Zuckerberg’s attorney fees, they’d have to queue up behind <a href="https://www.wsj.com/articles/donald-trumps-business-plan-left-a-trail-of-unpaid-bills-1465504454">decades’ worth</a> of unpaid Trump creditors. </p>
<p>As Trump would tweet, if given the chance: “So much winning!”</p><img src="https://counter.theconversation.com/content/164146/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Frank LoMonte does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Former President Trump is asking the courts to do what tycoon Trump once would have denounced: tell some of America’s most powerful corporations that they have no choice who they do business with.Frank LoMonte, Director of the Brechner Center for Freedom of Information, University of FloridaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1587892021-04-14T01:04:48Z2021-04-14T01:04:48ZDoctors do not face a greater legal risk if they give AstraZeneca to younger Australians — here’s why<figure><img src="https://images.theconversation.com/files/394714/original/file-20210413-15-hxbl18.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Simon Santi/AAP</span></span></figcaption></figure><p>Last week, the federal government changed its <a href="https://www.health.gov.au/news/atagi-statement-on-astrazeneca-vaccine-in-response-to-new-vaccine-safety-concerns">recommendation</a> for COVID-19 vaccines. The Pfizer vaccine is now the “preferred” jab for adults under 50. </p>
<p>Amid the <a href="https://theconversation.com/as-australias-vaccination-bungle-becomes-clear-morrisons-political-pain-is-only-just-beginning-158704">political fallout</a> and worries about what it means for Australia’s COVID recovery, doctors have expressed concern about their liability. Some said they would even <a href="https://www.smh.com.au/national/doctors-stop-offering-astrazeneca-jabs-over-legal-risk-20210410-p57i5f.html">stop giving the AstraZeneca jab</a> until they were more certain of their position.</p>
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Read more:
<a href="https://theconversation.com/new-astrazeneca-advice-is-a-safer-path-but-its-damaged-vaccine-confidence-the-government-must-urgently-restore-it-158763">New AstraZeneca advice is a safer path, but it's damaged vaccine confidence. The government must urgently restore it</a>
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<p>Are they at greater legal risk if they give AstraZeneca to younger Australians? The government <a href="https://www1.racgp.org.au/newsgp/professional/no-legal-risk-for-gps-administering-astrazeneca-va">insists</a> they are not. This is correct — here’s why.</p>
<h2>Proving fault</h2>
<p>In Australia, medical liability is, for the most part, fault-based. This means patients who are injured by medicines, medical devices and medical interventions must prove the doctors who used them were to blame for any injury they suffered before any compensation will be paid. </p>
<p>Australian liability laws are state-based, but generally speaking, fault can only be proven when the doctor has acted outside of the professional standard of care in a way that is not supported widely in Australia by professional peers.</p>
<h2>What is the standard of care?</h2>
<p>The standard of care for diagnosis and treatment is effectively set by the medical profession. In cases — such as COVID vaccines — where the treatment is new and knowledge about the treatment is emerging, the standard of care is also developing. </p>
<p>Importantly, doctors are judged by measuring their behaviour against the standard of care at the time the treatment was given. This means that if, in 2020 a doctor administers a COVID vaccine in a way that was supported by their peers at that time, they will not be found to have breached the standard of care if, years later, other side effects become known.</p>
<figure class="align-center ">
<img alt="Prime Minister Scott Morrison inspecting AstraZeneca production." src="https://images.theconversation.com/files/394716/original/file-20210413-19-3lxa67.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/394716/original/file-20210413-19-3lxa67.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=415&fit=crop&dpr=1 600w, https://images.theconversation.com/files/394716/original/file-20210413-19-3lxa67.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=415&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/394716/original/file-20210413-19-3lxa67.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=415&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/394716/original/file-20210413-19-3lxa67.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=522&fit=crop&dpr=1 754w, https://images.theconversation.com/files/394716/original/file-20210413-19-3lxa67.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=522&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/394716/original/file-20210413-19-3lxa67.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=522&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Last week the Morrison government changed its advice around the AstraZeneca vaccine.</span>
<span class="attribution"><span class="source">David Caird/AAP</span></span>
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<p>We should also be careful not to automatically equate the government’s advice concerning the AstraZeneca vaccine with what the standard of care should be at the individual level. </p>
<p>The government’s advice is concerned with the big picture and with risks across a population. Doctors have the task of treating individuals. So, the government’s advice should be considered by doctors when working out which vaccines to offer to patients, but there may well be situations where the AstraZeneca is the best option for individual adult patients under 50.</p>
<h2>Giving advice and accepting risks</h2>
<p>Doctors also have a duty to inform individual patients about material risks of the treatments they provide. Every intervention comes with a set of risks but only the material ones need to be disclosed. </p>
<p>Material risks include those the profession would usually notify patients of (objective material risks), as well as risks the individual patient may have a particular concern about (subjective material risks). </p>
<p>The classic example of this is the 1993 case of <a href="https://pubmed.ncbi.nlm.nih.gov/11648609/">Rogers v Whitaker</a> where a woman who was blind in one eye was considering cosmetic surgery on that eye. She was concerned about any risk (no matter how remote) of going blind in her “good eye”. Later, she became blind from a complication of her treatment, which was known but very rare. The doctor’s failure to inform her was considered a breach of the duty to inform — even though it was not a risk normally disclosed — because the risk was subjectively material to her. </p>
<p>Again, the doctor will always be judged by what the profession knew at the time regarding these risks. If a patient is told about the material risks of the treatment and decides to go ahead with the treatment, the doctor has satisfied their legal duty to advise and cannot be held liable for subsequent injuries.</p>
<h2>What now for GPs and AstraZeneca?</h2>
<p>As long as doctors consider the government advice, keep up with professional news about best practice and communicate material risks to patients, they face no greater liability for providing COVID vaccines than they do for any other treatment. </p>
<p>The reality is the risks of people being injured by vaccines, and of doctors being sued for vaccine-related injury, is incredibly low.</p>
<p>At the weekend, the <a href="https://www.abc.net.au/news/2021-04-11/covid-live-blog-coronavirus-latest-news/100061512">Australian Medical Association</a> also said if a patient makes an informed decision to receive the AstraZeneca vaccine, GPs are protected under professional indemnity insurance. </p>
<p>Of course, the reality of low risk may not match the fear practitioners experience. So, are there things we can do to reduce the anxiety practitioners feel regarding liability?</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/bad-reactions-to-the-covid-vaccine-will-be-rare-but-australians-deserve-a-proper-compensation-scheme-150288">Bad reactions to the COVID vaccine will be rare, but Australians deserve a proper compensation scheme</a>
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<p>One obvious measure is to move to no-fault systems of compensation. Many countries including the United States and New Zealand have no-fault compensation schemes for vaccine-related injury. Putting such a scheme in place may very well help doctors get over the fear of being sued. It might also give patients confidence knowing that in an extremely rare case of injury, they will be covered. </p>
<p>This could be done either with a one-off scheme or by expanding the <a href="https://treasury.gov.au/programs-initiatives-consumers-community/niis">National Injury Insurance Scheme</a>, which covers personal injuries from motor vehicle accidents.</p>
<p>Without such schemes, Australian patients will only have access to compensation for vaccine-related injury if they can prove it was caused by a failure to act according to medical standards of care or a failure to properly inform the patient of material risks.</p><img src="https://counter.theconversation.com/content/158789/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Cameron Stewart does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Generally speaking, fault can only be proven when the doctor has acted outside of the professional standard of care.Cameron Stewart, Professor at Sydney Law School, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1518232020-12-10T13:36:05Z2020-12-10T13:36:05ZWhy shielding businesses from coronavirus liability is a bad idea<figure><img src="https://images.theconversation.com/files/374021/original/file-20201209-19-155zhxy.jpg?ixlib=rb-1.1.0&rect=80%2C8%2C5910%2C3979&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Posting signs like this are often enough to avoid liability. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/VirusOutbreakColorado/c1ea3e674d8c4e6c80331c642984dd85/photo?Query=coronavirus%20mask%20sign&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=686&currentItemNo=1">AP Photo/David Zalubowski</a></span></figcaption></figure><p>Congress <a href="https://www.nytimes.com/2020/12/08/us/politics/congress-coronavirus-stimulus.html">may be close to a deal</a> on another coronavirus bailout, but Senate Republican demands for liability protections for businesses <a href="https://www.crainsnewyork.com/politics/mcconnell-says-relief-talks-should-drop-liability-state-aid">remain a major obstacle</a>. </p>
<p>Senate Majority Leader Mitch McConnell <a href="https://www.nytimes.com/2020/04/28/business/businesses-coronavirus-liability.html">has long warned of an “avalanche”</a> of lawsuits that will stymie economic recovery efforts if Congress does not grant companies sweeping immunity from civil liability for failure to adequately protect workers and customers from infection. </p>
<p><a href="https://press.uchicago.edu/ucp/books/book/chicago/O/bo35855002.html">My research</a> on the role of civil lawsuits in reducing foodborne illness outbreaks suggests that fears of excessive litigation are unwarranted. What’s more, the modest liability exposure that does exist is important to ensuring businesses take reasonable coronavirus precautions as they resume normal operations.</p>
<h2>How not to be careless</h2>
<p>As a general matter, businesses are subject to civil liability for <a href="https://injury.findlaw.com/accident-injury-law/proving-fault-what-is-negligence.html">carelessness</a> that causes injury to others. The law defines carelessness as a failure to exercise “reasonable care.”</p>
<p>In applying this standard, courts consider several factors: </p>
<ul>
<li>Did the business take available <a href="https://www.law.cornell.edu/wex/negligence">cost-effective precautions</a> to prevent injury? </li>
<li>Did the business comply with <a href="https://www.nolo.com/dictionary/negligence-per-se-term.html">laws or regulations</a> designed to protect public health and safety? </li>
<li>Did the business conform to <a href="http://www.kohlerlaw.com/CustomasProofofNegligence">industry standards</a> for health and safety? </li>
<li>Did the business exercise <a href="https://www.lawnow.org/the-reasonable-person/">common sense</a>? </li>
</ul>
<p>If the answer to one or more of the questions is no, then a court may conclude that the business was careless and is subject to liability for damages to customers who suffered harm. </p>
<p>In the context of the current pandemic, I believe that reasonable care sets a clear standard for business owners. Invest in cost-effective precautions like ensuring employees wear masks and provide for social distancing. Follow the latest guidance of health officials and all health and safety regulations. Keep up with what other similar businesses are doing to prevent infection. Use common sense.</p>
<p>Law-abiding, thoughtful <a href="https://www.nytimes.com/2020/04/26/business/coronavirus-states-businesses-reopen.html">business owners</a> – those who care about the safety of their employees and their patrons – are likely to exercise reasonable care to prevent COVID-19 transmission with or without the threat of a lawsuit.</p>
<p>For example, the owner of a nail salon in Georgia back in April <a href="https://www.nytimes.com/2020/04/28/opinion/coronavirus-reopening-georgia.html">described her plans for reopening</a>. The salon will accept patrons by appointment only, conduct pre-screening telephone interviews for signs of illness and limit the number of people in the salon at any one time. They’ll take temperatures before allowing people to enter, require hand-washing, equip employees and patrons with masks and gloves, and sanitize all work areas between appointments.</p>
<p><a href="https://www.nytimes.com/2020/04/26/business/coronavirus-states-businesses-reopen.html">Conscientious business owners</a> like this have no reason to fear a lawsuit alleging they failed to take reasonable precautions. </p>
<p>Predictions of <a href="https://www.washingtonpost.com/business/2020/04/24/liability-shield-white-house-coronavirus/">“frivolous” lawsuits</a> appear to be generating unnecessary anxiety among business groups. But they shouldn’t. Personal injury lawyers representing victims work on a <a href="https://law.freeadvice.com/litigation/litigation/lawyer_contingency_fee.htm">contingency fee</a> basis. This means that they earn fees only when they bring cases with a strong enough chance of winning to reach a favorable settlement or a judgment.</p>
<p>Lawyers have no incentive to bring sure losers, and they risk being <a href="https://www.cga.ct.gov/PS98/rpt%5Colr%5Chtm/98-R-0916.htm">disciplined</a> for professional misconduct if they do so. For these reasons, <a href="https://www.library.ca.gov/Content/pdf/crb/reports/FrivolousActionFilingsReport.pdf">frivolous lawsuits are rare</a> and highly unlikely in the context of COVID-19 transmission claims against businesses.</p>
<h2>Exaggerated fears</h2>
<p>The best available data does not support dire warnings about excessive litigation. As of Dec. 7, <a href="https://www.huntonak.com/en/covid-19-tracker.html">6,571 civil lawsuits have been filed</a> related to COVID-19. Only 37 of these are personal injury claims by business patrons for COVID-19 exposure, and an additional 116 are claims by employees against companies for inadequate protection from infection in the workplace, personal injury or wrongful death.</p>
<p>Most of the claims involved other issues, such as 1,372 insurance disputes over business losses and 1,184 claims for alleged civil rights violations.</p>
<p>If there is any reason to fear excessive litigation, these numbers suggest that the real threat is from lawsuits filed by business owners against their insurance companies and individuals protesting public health measures designed to prevent another economic shutdown – not from personal injury claims. </p>
<p>Even for business owners who fail to take reasonable precautions, the prospect of a personal injury claim is still remote.</p>
<p>To successfully sue a business for COVID-19 transmission, a patron would have to prove that he or she contracted COVID-19 from the business and not from some other source. However, most people infected with COVID-19 currently have no reliable way of <a href="https://www.eff.org/deeplinks/2020/04/challenge-proximity-apps-covid-19-contact-tracing">identifying the source</a> of their infection. The <a href="https://annals.org/aim/fullarticle/2762808/incubation-period-coronavirus-disease-2019-covid-19-from-publicly-reported">gap of three to 11 days</a> between infection and illness, the difficulty of <a href="https://news.fiu.edu/2020/tracking-the-path-of-an-outbreak">recalling all of one’s contacts</a> during that interval and <a href="https://www.nytimes.com/2020/04/06/opinion/coronavirus-testing.html">limited testing</a> for the virus present formidable obstacles to establishing causation.</p>
<p>Moreover, a business would not be liable to patrons who knowingly and voluntarily assumed the risk of infection. Patrons of crowded stores or businesses where many customers and employees are not wearing masks, for example, would not have viable legal claims even if they can prove carelessness and causation.</p>
<p>As for claims by employees against careless businesses, most of these will be covered by <a href="https://www.forbes.com/sites/aaroncolby/2020/05/13/the-workplace-and-covid-19-workers-compensation-to-the-rescue/#7dcf4bcb6295">workers’ compensation</a>, which precludes employees from filing negligence claims for workplace injuries.</p>
<p>[<em>The Conversation’s science, health and technology editors pick their favorite stories.</em> <a href="https://theconversation.com/us/newsletters/science-editors-picks-71/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=science-favorite">Weekly on Wednesdays</a>.]</p>
<h2>Sending a strong signal</h2>
<p>Because of these considerable challenges, viable legal claims related to COVID-19 are likely to be extremely rare. </p>
<p>Yet even a small number of personal injury lawsuits act as a nudge, encouraging the entire business community to adopt reasonable precautions. This is one of the lessons of civil litigation arising out of foodborne illness outbreaks.</p>
<p>As I document in my 2019 book, “<a href="https://press.uchicago.edu/ucp/books/book/chicago/O/bo35855002.html">Outbreak: Foodborne Illness and the Struggle for Food Safety</a>,” a handful of high-profile lawsuits against food companies have encouraged businesses at every link along the supply chain to improve their safety practices. That’s what happened after lawsuits against <a href="https://www.foodsafetynews.com/2017/12/jack-in-the-box-e-coli-outbreak-25th-anniversary/">Jack in the Box</a> over contaminated hamburgers in 1993 and <a href="https://www.foodsafetynews.com/2009/09/meaningful-outbreak-7-dole-spinach-e-coli-outbreak/">Dole</a> over <em>E. coli</em> in baby spinach in 2006.</p>
<p>Similarly, the prospect of liability for COVID-19 transmission is likely to encourage business owners to invest in cost-effective precautions, follow the advice of public health authorities, adopt industry safety standards and use common sense.</p>
<p>I believe shielding business owners from this liability is one kind of immunity that will not help end the current crisis.</p>
<p><em>This is an updated version of an <a href="https://theconversation.com/business-liability-shield-is-holding-up-another-coronavirus-bailout-a-legal-scholar-explains-why-immunity-is-unnecessary-and-even-harmful-145611">article most recently published</a> on Sept. 8, 2020.</em></p><img src="https://counter.theconversation.com/content/151823/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Timothy D. Lytton is a member of the American Association for Justice.</span></em></p>Congress and the White House are trying to wrap up negotiations on a nearly $1 trillion coronavirus bailout, but Senate Republican demands for a liability shield has been a key obstacle.Timothy D. Lytton, Distinguished University Professor & Professor of Law, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1509412020-11-30T21:55:39Z2020-11-30T21:55:39ZWho’s to blame when a self-driving car has an accident?<figure><img src="https://images.theconversation.com/files/371603/original/file-20201126-13-87jval.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C5100%2C3443&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Self-driving cars are programmed to identify and avoid risk, but in the case of an accident, who is legally responsible?</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><p>With self-driving cars <a href="https://www.cbc.ca/news/business/driverless-cars-pittis-1.5739153">gaining traction in today’s automobile landscape</a>, the issue of legal liability in the case of an accident has become more relevant.</p>
<p>Research in human-vehicle interaction has shown <a href="https://doi.org/10.1080/10447318.2018.1561792">time and again</a> <a href="https://doi.org/10.1177/0018720819836310">that even systems</a> <a href="https://doi.org/10.1007/978-3-030-58465-8_7">designed to automate driving</a> — like adaptive cruise control, which maintains the vehicle at a certain speed and distance from the car ahead — are far from being error-proof. </p>
<p>Recent evidence points to drivers’ limited understanding of what these systems can and cannot do (<a href="https://doi.org/10.1038/s41562-017-0202-6">also known as mental models</a>) as a contributing factor to system misuse.</p>
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<figcaption><span class="caption">A webinar on the dangers of advanced driver-assisted systems.</span></figcaption>
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<p>There are many issues troubling the world of self-driving cars including <a href="https://doi.org/10.1177/0018720819872034">the less-than-perfect technology</a> and <a href="https://newsroom.aaa.com/tag/autonomous-vehicles/">lukewarm public acceptance of autonomous systems</a>. There is also the question of legal liabilities. In particular, what are the legal responsibilities of the human driver and the car maker that built the self-driving car?</p>
<h2>Trust and accountability</h2>
<p>In a recent study published in <em>Humanities and Social Science Communications</em>, the authors tackle <a href="https://doi.org/10.1057/s41599-020-00644-2">the issue of over-trusting drivers and the resulting system misuse from a legal viewpoint</a>. They look at what the manufacturers of self-driving cars should legally do to ensure that drivers understand how to use the vehicles appropriately.</p>
<p>One solution suggested in the study involves requiring buyers to sign end-user licence agreements (EULAs), similar to the terms and conditions that require agreement when using new computer or software products. To obtain consent, manufacturers might employ the omnipresent touchscreen, which comes installed in most new vehicles. </p>
<p>The issue is that this is far from being ideal, or even safe. And the interface may not provide enough information to the driver, leading to confusion about the nature of the requests for agreement and their implications.</p>
<p>The problem is, most end users don’t read EULAs: a 2017 Deloitte study <a href="https://www.businessinsider.com/deloitte-study-91-percent-agree-terms-of-service-without-reading-2017-11">shows that 91 per cent of people agree to them without reading</a>. The percentage is even higher in young people, with 97 per cent agreeing without reviewing the terms.</p>
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<p>Unlike using a smartphone app, operating a car has intrinsic and sizeable safety risks, whether the driver is human or software. Human drivers need to consent to take responsibility for the outcomes of the software and hardware.</p>
<p>“Warning fatigue” and <a href="https://doi.org/10.1080/10447318.2018.1561792">distracted driving</a> are also causes for concern. For example, a driver, annoyed after receiving continuous warnings, could decide to just ignore the message. Or, if the message is presented while the vehicle is in motion, it could represent a distraction.</p>
<p>Given these limitations and concerns, even if this mode of obtaining consent is to move forward, it likely won’t fully shield automakers from their legal liability should the system malfunction or an accident occur.</p>
<p>Driver training for self-driving vehicles can help ensure that <a href="https://doi.org/10.1080/10447318.2018.1561792">drivers fully understand system capabilities and limitations</a>. This needs to occur beyond the vehicle purchase — recent evidence shows that even relying on <a href="https://doi.org/10.1016/j.trip.2020.100103">the information provided by the dealership is not going to answer many questions</a>. </p>
<p>All of this considered, the road forward for self-driving cars is not going to be a smooth ride after all.</p><img src="https://counter.theconversation.com/content/150941/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Francesco Biondi is an Assistant Professor at the University of Windsor, and consults on transportation and manufacturing Human Factors cases. </span></em></p>As self-driving cars increase in popularity, the question of legal liability remains. The driver, automobile manufacturer and software designers all have a role to play.Francesco Biondi, Assistant Professor, Human Kinetics, University of WindsorLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1465142020-10-04T11:16:27Z2020-10-04T11:16:27ZGovernments shouldn’t shield essential workers from COVID-19 lawsuits<figure><img src="https://images.theconversation.com/files/360810/original/file-20200930-18-1tb0u4t.JPG?ixlib=rb-1.1.0&rect=0%2C0%2C5489%2C3219&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Hospital support workers wave to cars honking their horns in support as the protest inequality for essential workers at Rouge Valley Hospital in Toronto in June 2020. </span> <span class="attribution"><span class="source">THE CANADIAN PRESS/Frank Gunn</span></span></figcaption></figure><p>Essential workers are the heroes of the COVID-19 pandemic. Civil servants, health-care workers, cleaning staff and grocery store employees work hard, risking infection, often for little pay. <a href="https://www.bclaws.ca/civix/document/id/mo/mo/2020_m094">Some provinces have laws</a> to protect these people against negligence lawsuits related to COVID-19. </p>
<p>This may seem like a great idea. Why wouldn’t we want to protect our essential workers from lawsuits? </p>
<p>But such laws are problematic. They deny the sick access to compensation, eliminate an incentive to keep people safe and reward businesses for their unsafe practices.</p>
<p>Getting COVID-19 can mean terrible illness and long-term health effects. It may also mean lost income. There may be childcare and medical expenses. A person suffering such losses because someone was negligent would normally be able to seek compensation through the civil justice system. But because of <a href="https://www2.gnb.ca/content/dam/gnb/Corporate/pdf/EmergencyUrgence19.pdf">new legal protections for essential workers and services</a>, this avenue will no longer exist for certain victims.</p>
<h2>Insurance can compensate</h2>
<p>You may still worry about the essential worker who’s just doing their best in difficult circumstances. But lawsuits would almost inevitably be launched against governments or businesses, or against individuals with insurance. </p>
<p>An injured person will sue a restaurant, not its employee. Health-care professionals have insurance. Governments can afford to compensate those injured by their employees’ negligence. Why should victims of negligence not be able to access this insurance coverage, or government’s deep pockets, in the unlikely event that an essential worker’s carelessness causes a COVID-19 infection? </p>
<p>What’s more, the risk of legal liability is an incentive to keep things safe. Businesses may take just a bit more care if they know they’ll be responsible for the consequences of their or their employees’ negligence.</p>
<figure class="align-center ">
<img alt="People wear face masks as they leave a grocery store pushing a cart." src="https://images.theconversation.com/files/361117/original/file-20201001-18-1tzefwl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/361117/original/file-20201001-18-1tzefwl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=430&fit=crop&dpr=1 600w, https://images.theconversation.com/files/361117/original/file-20201001-18-1tzefwl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=430&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/361117/original/file-20201001-18-1tzefwl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=430&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/361117/original/file-20201001-18-1tzefwl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=540&fit=crop&dpr=1 754w, https://images.theconversation.com/files/361117/original/file-20201001-18-1tzefwl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=540&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/361117/original/file-20201001-18-1tzefwl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=540&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">People wear face masks as they leave a grocery store in Montréal on Sept. 13, 2020.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Graham Hughes</span></span>
</figcaption>
</figure>
<p>That doesn’t mean we should never shield essential workers or services from liability. For example, we may want to protect non-profit organizations, like homeless shelters and addiction services, that provide assistance to vulnerable groups. </p>
<p>It is likely difficult to maintain physical distancing and ensure mask-wearing in those environments. Given the social value of those services and how hard it would be for them to afford adequate insurance, shielding them from liability makes sense.</p>
<p>But even if we want to protect some essential services from lawsuits, there’s no need to protect them all. </p>
<h2>Laws cover too many sectors</h2>
<p>Laws in <a href="https://www2.gnb.ca/content/dam/gnb/Corporate/pdf/EmergencyUrgence19.pdf">New Brunswick</a> and <a href="https://www.bclaws.ca/civix/document/id/mo/mo/2020_m094">British Columbia</a> protect a vast range of industries and workers from liability. These include lawyers, meat-packing plants, civil servants, oil refinery workers, chiropractors, cannabis retail workers and long-term care facilities.</p>
<p>In fairness, these laws apply narrowly: actions that are contrary to public health guidance, or that go beyond carelessness, are not protected. But British Columbia has recently <a href="https://www.leg.bc.ca/parliamentary-business/legislation-debates-proceedings/41st-parliament/5th-session/bills/third-reading/gov19-3">expanded its protections against negligence suits</a>, and other provinces may follow suit.</p>
<p>In Ontario, for example, lobbyists for the long-term care industry have asked Doug Ford’s government to exempt long-term care facilities from liability. <a href="https://www.cbc.ca/news/canada/toronto/ontario-covid-19-lawsuits-civil-immunity-1.5614365">They say the industry needs protection</a>, because of the unprecedented nature of the virus, to ensure facilities can continue to get the insurance they need to stay open and to stabilize and renew the long-term care sector. </p>
<figure class="align-center ">
<img alt="An elderly woman with a walker and wearing a mask chats with long-term workers wearing masks." src="https://images.theconversation.com/files/360820/original/file-20200930-24-nbk3o9.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/360820/original/file-20200930-24-nbk3o9.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=410&fit=crop&dpr=1 600w, https://images.theconversation.com/files/360820/original/file-20200930-24-nbk3o9.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=410&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/360820/original/file-20200930-24-nbk3o9.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=410&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/360820/original/file-20200930-24-nbk3o9.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=516&fit=crop&dpr=1 754w, https://images.theconversation.com/files/360820/original/file-20200930-24-nbk3o9.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=516&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/360820/original/file-20200930-24-nbk3o9.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=516&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A resident chats with workers at Orchard Villa Long-Term Care in Pickering, Ontario in June 2020.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Frank Gunn</span></span>
</figcaption>
</figure>
<p><a href="https://www.cbc.ca/news/canada/toronto/ontario-covid-19-lawsuits-civil-immunity-1.5614365">Ford has said he’s considering it</a>. </p>
<p>None of these reasons justifies shielding the long-term care sector from its legal responsibilities.</p>
<h2>Requirement to act reasonably</h2>
<p>Negligence law will take into account the unprecedented nature of the virus. No one is held to a standard of perfection. If, despite reasonable efforts, a facility could not purchase personal protective equipment, or it was understaffed because of employee illness, it would not be held legally responsible for resulting injuries. Negligence law simply demands that you act reasonably in all the circumstances. </p>
<p>True, access to insurance is a real concern, but when it comes to long-term care, if the cost of insuring even a well-run facility isn’t affordable, that’s perhaps another reason to shift from private long-term care toward a public model. </p>
<p>And we already have limits on liability. Canadian law caps the amount someone can receive as damages for pain and suffering. This cap protects businesses and makes insurance more affordable. </p>
<p>Instead, there are ready alternatives to shielding essential services from liability. </p>
<p>Governments could insure essential services that struggle to access insurance, like universities or long-term care facilities. </p>
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Read more:
<a href="https://theconversation.com/covid-19-dont-make-university-students-choose-between-education-and-legal-rights-142960">COVID-19: Don't make university students choose between education and legal rights</a>
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<p>Or they could provide a reserve fund for claims in excess of what insurance companies are willing to cover; <a href="https://www.theglobeandmail.com/arts/film/article-with-no-covid-19-insurance-solution-available-from-ottawa-canadian/">the Canadian film industry is asking for this</a> so that it can resume film production. Or governments could create a no-fault scheme, similar to Workers’ Compensation, for people injured by COVID-19.</p>
<p>Regardless of whether these alternatives are pursued, provinces shouldn’t prevent Canadians from seeking compensation if an essential service provider’s unreasonable acts cause COVID-19 infection. Instead, they should preserve access to the courts except in very narrow circumstances in which individuals or businesses truly need and deserve to be shielded from the consequences of their negligence.</p><img src="https://counter.theconversation.com/content/146514/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hilary Young does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Provinces shouldn’t prevent Canadians from seeking compensation if an essential service provider’s unreasonable acts cause COVID-19 infection.Hilary Young, Associate Professor, Law, University of New BrunswickLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1429602020-08-03T11:58:32Z2020-08-03T11:58:32ZCOVID-19: Don’t make university students choose between education and legal rights<figure><img src="https://images.theconversation.com/files/350431/original/file-20200730-23-1jt1e80.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C3600%2C2559&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A person bicycles past the University of Toronto campus during the COVID-19 pandemic in Toronto in June 2020. </span> <span class="attribution"><span class="source">THE CANADIAN PRESS/Nathan Denette</span></span></figcaption></figure><p>When U.S. President Donald Trump held a rally earlier this summer in Tulsa, Okla., expecting thousands of supporters to gather in close quarters, <a href="https://www.theguardian.com/us-news/2020/jun/12/trump-rally-supporters-sign-coronavirus-waiver">he had them all sign COVID-19 liability waivers</a>. This meant they couldn’t hold him or his campaign responsible if they contracted COVID-19 at the event.</p>
<p>At the time, we were amused by the irony, but COVID-19 waivers are becoming commonplace. The city of Halifax has <a href="https://www.halifax.ca/recreation/programs-activities/summer-camps">one for its summer camps</a>, as do <a href="https://www.4-h.sk.ca/covid19preparedness.html">Saskatchewan 4-H clubs</a> and some dental clinics and <a href="https://modoyoga.com/vancouver/studio-policies-covid-19/">yoga studios</a>. </p>
<p>Several American universities make students <a href="https://www.latimes.com/opinion/story/2020-06-25/op-ed-covid-colleges-fall-waivers">sign waivers before participating in sports</a>.</p>
<p>There’s every reason to think that if or when students return to campuses in the fall, Canadian universities will seek to limit their legal risk. We urge them not to. </p>
<h2>COVID-19 liability waiver</h2>
<p>St. Francis Xavier University, in Antigonish, N.S. — known colloquially as StFXU — recently announced its students would have to <a href="https://www.cbc.ca/news/canada/nova-scotia/legal-expert-says-covid-19-liability-waivers-could-become-more-common-1.5646901">sign COVID-19 liability waivers</a>. StFXU is offering most of its courses in person this fall.</p>
<p>Under StFXU’s proposed waiver, students won’t be allowed to return to campus or participate in <a href="https://twitter.com/tiffmaclennan/status/1281656838669434881/photo/1">any activities</a> — including online activities — unless they first sign it.</p>
<p>By doing so, students would have no legal recourse against StFXU if they contracted COVID-19 due to the university’s negligence or wrongdoing.</p>
<figure class="align-center ">
<img alt="A man's hand grasps a pink pencil and prepares to sign a liability waiver." src="https://images.theconversation.com/files/350427/original/file-20200730-27-1xeut1v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/350427/original/file-20200730-27-1xeut1v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/350427/original/file-20200730-27-1xeut1v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/350427/original/file-20200730-27-1xeut1v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/350427/original/file-20200730-27-1xeut1v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/350427/original/file-20200730-27-1xeut1v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/350427/original/file-20200730-27-1xeut1v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Students will be barred from taking part in any campus activities unless they sign the waiver.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
</figcaption>
</figure>
<p>In response to <a href="https://globalnews.ca/news/7172148/students-stfx-waiver-covid-19/">concerns raised by the university community</a>, StFXU <a href="https://www.cbc.ca/news/canada/nova-scotia/st-francis-xavier-university-waiver-wording-1.5652189">reconsidered the specific wording of its waiver</a>, but <a href="https://globalnews.ca/news/7236541/stfx-moving-forward-with-controversial-waiver-students-disappointed/">ultimately decided to proceed.</a></p>
<p>Even without a waiver, StFXU wouldn’t be financially responsible for all COVID-19 infections — it’s only liable for those infections caused by its unreasonable acts or omissions. But the waiver meant that even if StFXU acted unreasonably, students couldn’t recover compensation.</p>
<h2>COVID-19 waivers are wrongheaded</h2>
<p>StFXU and other universities would be wrong to impose this risk on their students. Moreover, such waivers might not even be enforceable.</p>
<p>Liability waivers are contracts — agreements between parties committing to some kind of exchange. They allocate risks and rewards. If you want a company to provide you with scuba lessons for $500, for example, it will insist you sign a waiver so that you bear the risk of injury. </p>
<p>In theory, you could pay the company (or a competitor) $600 for those lessons and the scuba company could insure against losses. The ability to allocate risk and voluntarily agree on terms is fundamental to contract law, and <a href="https://lawjournal.mcgill.ca/article/contracting-out-of-access-to-justice-enforcement-of-forum-selection-clauses-in-consumer-contracts/">Canadian courts have generally enforced liability waivers</a>.</p>
<p>University COVID-19 waivers, however, are different. Students don’t have the ability to negotiate the terms of a waiver or to pursue their post-secondary education elsewhere. These waivers are take-it-or-leave-it: if you want to be a university student this fall, you’ll have to sign away your legal rights. If you don’t, you can’t have access to your education.</p>
<h2>Public policy concerns</h2>
<p>There are several reasons why universities would be wrong if they sought to impose the financial risk of COVID-19 on their students as insurance companies stop covering losses due to the pandemic.</p>
<p>First, post-secondary education is a public good. Like all education, it benefits not only individual students but society as a whole. If liability rests with universities, compensation will come partly from governments, <a href="https://www.universityaffairs.ca/news/news-article/2018-provincial-budget-highlights-universities/">which still provide a significant portion of university budgets.</a></p>
<p>Second, universities that unilaterally choose to offer in-person education this fall shouldn’t be allowed to shift the financial risks of their choice onto their students.</p>
<p>Third, liability waivers remove an important incentive to ensure campus is safe. Though universities will undoubtedly continue to take all appropriate measures to protect their students, the risk of legal liability helps encourage institutions to prioritize safety measures.</p>
<h2>Legal concerns</h2>
<p>There’s no “freedom of contract” here. Instead, there’s a significant inequality of bargaining power. University students will be forced to either accept the waiver or forego their education — at least for now. This isn’t a bargain students enter into willingly, as <a href="https://globalnews.ca/news/7172148/students-stfx-waiver-covid-19/">concerns over the StFXU waiver</a> show.</p>
<figure class="align-center ">
<img alt="A domed church tower with orange and yellow fall foliage in the background." src="https://images.theconversation.com/files/350306/original/file-20200730-33-19y5a1r.jpg?ixlib=rb-1.1.0&rect=0%2C5%2C3456%2C1769&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/350306/original/file-20200730-33-19y5a1r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/350306/original/file-20200730-33-19y5a1r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/350306/original/file-20200730-33-19y5a1r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/350306/original/file-20200730-33-19y5a1r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/350306/original/file-20200730-33-19y5a1r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/350306/original/file-20200730-33-19y5a1r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Xavier Hall at St. Francis Xavier University in Antigonish, is seen from Nicholson Tower. The university is going to issue COVID-19 waivers this fall to students.</span>
<span class="attribution"><span class="source">(Brendan Riley/Creative Commons)</span></span>
</figcaption>
</figure>
<p>Indeed, waivers like the one initially imposed by StFXU may not be legally enforceable. The Supreme Court of Canada’s <a href="https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18406/index.do">recent decision in the <em>Uber Technologies Inc. vs. Heller</em> case</a> emphasized that contracts won’t be enforced when they’re unfair. </p>
<p>For example, if your doctor said she would only take you on as a patient if you waived your right to sue her for negligence, such a waiver wouldn’t be enforced, any more than a promise made with a gun to your head would be.</p>
<p>The law in Canada on unfair or “unconscionable” contracts <a href="https://cbr.cba.org/index.php/cbr/article/view/4482/4445">depends on the specific facts of each case</a>. The initial StFXU waiver was an entirely one-sided, take-it-or-leave-it deal in the context of access to higher education and the risk of serious illness. There are reasonable grounds to believe it wouldn’t be upheld in court.</p>
<p>While it’s not inconceivable that a university could craft an enforceable COVID-19 waiver, the law is unlikely to tolerate a contract effectively compelling students to choose between their education and their health. </p>
<h2>Universities must ensure student safety</h2>
<p>We sympathize with institutions whose insurance companies will soon stop covering losses due to COVID-19. That puts them in a difficult position, and for many organizations, like summer camps and yoga studios, waivers may be appropriate. </p>
<figure class="align-center ">
<img alt="Students carrying bags and suitcases walk in a group on a grey sidewalk." src="https://images.theconversation.com/files/350428/original/file-20200730-23-1ofofrc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/350428/original/file-20200730-23-1ofofrc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/350428/original/file-20200730-23-1ofofrc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/350428/original/file-20200730-23-1ofofrc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/350428/original/file-20200730-23-1ofofrc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/350428/original/file-20200730-23-1ofofrc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/350428/original/file-20200730-23-1ofofrc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Queen’s University students move out of residence in Kingston, Ont., in March 2020.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Lars Hagberg</span></span>
</figcaption>
</figure>
<p>But universities are different. They have a higher calling than merely protecting the bottom line. Universities have a duty to provide a safe learning environment for their students.</p>
<p>If they fail in this duty and students contract COVID-19 as a result, universities should be legally responsible.</p><img src="https://counter.theconversation.com/content/142960/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Students won’t be allowed to participate in activities at St. Francis Xavier University this fall unless they sign a COVID-19 waiver. That’s forcing them to make a difficult and unfair choice.Jason MacLean, Assistant Professor of Law, University of New BrunswickHilary Young, Associate Professor, Law, University of New BrunswickLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1406002020-06-15T12:23:31Z2020-06-15T12:23:31ZWhy hairdressers, gyms and the Trump campaign are asking people to sign COVID-19 waivers<figure><img src="https://images.theconversation.com/files/341695/original/file-20200614-153867-cshg69.jpg?ixlib=rb-1.1.0&rect=64%2C72%2C5343%2C3348&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Taking reasonable precautions, like this Iowa barber, will help protect businesses from lawsuits</span> <span class="attribution"><span class="source">AP Photo/Charlie Neibergall</span></span></figcaption></figure><p>Americans venturing out to salons and gyms after weeks sheltering in place will have to learn a new ritual: <a href="https://www.insurancejournal.com/news/national/2020/06/01/570571.htm">signing away their right to sue</a>. </p>
<p>My local YMCA now asks anyone wishing to use its gym to <a href="https://www.eugeneymca.org/reopening">sign a waiver</a>. My child’s dentist requires patients to <a href="https://www.orthoii-forms.com/COVID19InformedConsent.aspx?culture=en-US&custid=1332">accept the risk</a> of contracting COVID-19. And <a href="https://uonews.uoregon.edu/elizabeth-tippett-school-law">my law students</a> taking the bar exam <a href="http://www.osbar.org/_docs/admissions/COVID/COVID-19_Code_of_ConductDeclaration.pdf">have to give up</a> their right to sue – before they’re allowed to file lawsuits.</p>
<p>This <a href="https://www.reuters.com/article/us-health-coronavirus-disclaimers-busine-idUSKBN238298">seems</a> to be happening anywhere there’s prolonged time indoors or close personal contact. Want a haircut? <a href="https://waiver.smartwaiver.com/w/5ec0a1fa4eeac/web/">Sign a waiver</a>. Summer camp? <a href="https://nilanjohnson.com/waivers-and-releases-how-sports-clubs-summer-camps-and-daycares-should-prepare-to-reopen/">Waiver</a>. Church? <a href="https://www.brotherhoodmutual.com/resources/safety-library/risk-management-articles/disasters-emergencies-and-health/general-health-and-injury-prevention/coronavirus-social-distancing">They’re being considered</a>. Even President Donald Trump is requiring people attending his rallies to <a href="https://events.donaldjtrump.com/events/tulsa-oklahoma-rally-june-19?utm_medium=web&utm_source=djt_web&utm_content=redbar">agree to</a> “assume all risks related to exposure to COVID-19.”</p>
<p>Maria Trysla, CEO of online waiver company <a href="https://www.smartwaiver.com/">Smartwaiver</a>, told me her company starting seeing requests for COVID-19 waivers in early May. And they were coming from industries that aren’t in the habit of using waivers, like nail salons, day spas and even some restaurants.</p>
<p>Should you think twice before signing one of these waivers? Absolutely – though you’re unlikely to have much choice. These waivers tend to be presented on a take-it-or-leave it basis, which raises questions about how well they will hold up in court. </p>
<p>But they also raise the question of who is best able to manage the health risks associated with COVID-19 <a href="https://www.nytimes.com/2020/04/10/magazine/coronavirus-economy-debate.html">as the economy reopens</a>. The legal risk shouldn’t just be shifted over to customers. Instead, it should be a shared responsibility.</p>
<h2>The law of waivers</h2>
<p>Waivers are unusual legal creatures because they sit at the intersection of two different areas of law – torts and contracts. </p>
<p>Tort law is the law of negligence and defines what we owe to each other in everyday life. Texting while driving, for example, is considered grossly negligent. </p>
<p>Likewise, businesses are considered negligent when they <a href="https://theconversation.com/why-offering-businesses-immunity-from-coronavirus-liability-is-a-bad-idea-137562">expose their customers</a> to additional risk – like <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/uflr18&div=39&id=&page=">leaving a banana peel</a> on the floor of a supermarket or <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/lyclr24&div=10&id=&page=">serving</a> <a href="https://doi.org/10.1016/S0010-8804(02)80018-0">boiling hot coffee</a>. </p>
<p>Conversely, taking reasonable precautions to protect customers from hazards like the coronavirus – such as social distancing measures – would tend to protect businesses from tort liability. That may be is why law firms are <a href="https://www.natlawreview.com/article/legal-considerations-reopening-business-time-coronavirus">recommending health precautions</a>, rather than waivers, as a first line of defense.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/341360/original/file-20200611-80750-1r96e3k.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/341360/original/file-20200611-80750-1r96e3k.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/341360/original/file-20200611-80750-1r96e3k.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=556&fit=crop&dpr=1 600w, https://images.theconversation.com/files/341360/original/file-20200611-80750-1r96e3k.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=556&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/341360/original/file-20200611-80750-1r96e3k.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=556&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/341360/original/file-20200611-80750-1r96e3k.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=699&fit=crop&dpr=1 754w, https://images.theconversation.com/files/341360/original/file-20200611-80750-1r96e3k.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=699&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/341360/original/file-20200611-80750-1r96e3k.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=699&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The author was asked to assume the risk of COVID-19 infection before taking her child to the dentist.</span>
<span class="attribution"><span class="source">Elizabeth Tippett</span>, <a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span>
</figcaption>
</figure>
<p>Contract law, on the other hand, is about a compact between two or more people in which you agree to some form of bargained exchange.</p>
<p>A waiver is a contract that puts tort law out of reach. In a typical waiver, you agree that you will not sue another person or business for negligent behavior or acknowledge that certain activities are inherently dangerous and you “assume the risk” of injury or death. These sort of waivers may be familiar if you’ve ever gone skiing or taken your kids to a trampoline park.</p>
<p>Waivers are a matter of state law, which vary widely, and there is no single federal law governing them. <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3367971">Some states</a> approach waivers with a “freedom of contract” stance, on the notion that people should have the freedom to agree to whatever they like. </p>
<p>But there are limits on what companies can waive away. Courts <a href="https://www.bclplaw.com/en-US/insights/liability-waivers-related-to-covid-19-in-the-united-states.html">generally decline</a> to enforce waivers when the conduct was egregious, like intentional harms or cases involving <a href="https://www.latimes.com/travel/la-trw-recreation17jul17-story.html">gross negligence</a>. A court will also sometimes invalidate a waiver if it considers the agreement too one-sided or harmful to the public. For example, the Oregon Supreme Court <a href="https://scholar.google.com/scholar_case?case=12885152647520065410">invalidated</a> a waiver printed on an injured snowboarder’s lift ticket, noting the public interest in ensuring ski hills design their jumps with safety in mind.</p>
<p>In other words, signing a waiver is taking a gamble with your legal rights. You might be able to wiggle out of it later, but you might be stuck with it. </p>
<p>Either way, businesses may be hoping that a waiver will deter customers from even trying to sue if they get sick. And if businesses think they are legally bulletproof, they may take fewer health precautions.</p>
<h2>A problem of shared risk</h2>
<p>A waiver is like a contractual hot potato – you’re passing a legal risk to someone else without really addressing the underlying danger. However, a contractual approach to safety hazards can fairly allocate legal risks with the goal of making everyone safer.</p>
<p>American jurist Guido Calabresi argued that legal risks should be borne by the party <a href="https://www.jstor.org/stable/pdf/795220.pdf">who could avoid them at least cost</a> – what he called the “cheapest cost avoider.” Some responsibility to manage infection fairly belongs with the customer, who can most easily prevent the spread of coronavirus to workers and others by staying home if they have symptoms or wearing a mask if they do not. And indeed, some of the waiver forms I reviewed contained reasonable language like this. </p>
<p>Other risks are beyond the customer’s control, such as a store’s sanitation practices or social distancing measures. The risks associated with adopting these types of health precautions <a href="https://theconversation.com/why-offering-businesses-immunity-from-coronavirus-liability-is-a-bad-idea-137562">should remain</a> with the business.</p>
<p>So “assume the risk” language in a contract might be fair if the business also promises to adopt its own reasonable measures. A naked waiver that simply passes the buck to the customer is not.</p>
<p>It’s no secret that businesses consider the legal risks of COVID-19 unbearable and are <a href="https://www.uschamber.com/letters-congress/coalition-letter-liability-relief-legislation-response-the-pandemic">lobbying</a> for immunity legislation <a href="https://www.nytimes.com/2020/05/15/opinion/coronavirus-liability-business-safety.html">from the federal government</a>. </p>
<p>The reality is that these risks are unbearable for everyone – businesses, consumers and especially workers. And the best way for the law to help is to encourage each of us to adopt health measures that protect those around us.</p>
<p>[<em>You need to understand the coronavirus pandemic, and we can help.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=upper-coronavirus-help">Read The Conversation’s newsletter</a>.]</p><img src="https://counter.theconversation.com/content/140600/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elizabeth C. Tippett does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>You may want to think twice before giving up your right to sue if you get sick, but you probably won’t have much choice.Elizabeth C. Tippett, Associate Professor, School of Law, University of OregonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1369052020-04-23T12:11:30Z2020-04-23T12:11:30ZBP paid a steep price for the Gulf oil spill but for the US a decade later, it’s business as usual<figure><img src="https://images.theconversation.com/files/329808/original/file-20200422-47832-cuxvpk.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C5607%2C3732&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Pools of floating crude oil at the site of the sunken Deepwater Horizon drilling rig, April 27, 2010.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/pools-of-crude-oil-float-on-the-surface-of-gulf-of-mexico-news-photo/106490050?adppopup=true">Benjamin Lowy/Getty Images</a></span></figcaption></figure><p>The largest offshore oil spill in U.S. history began ten years ago, on April 20, 2010. A massive explosion killed 11 workers on the Deepwater Horizon drilling rig, and a blowout spewed more than 3 million barrels of oil from the Macondo well, located 70 miles off the coast of Louisiana.</p>
<p>For three months the oil company, BP, struggled to contain its runaway well, which it finally capped on July 12 and <a href="https://www.britannica.com/event/Deepwater-Horizon-oil-spill">permanently sealed in mid-September</a>. By that time, oil coated more than 1,000 miles of coastline in six states and covered <a href="https://www.gulfspillrestoration.noaa.gov/sites/default/files/wp-content/uploads/Chapter-2_Incident-Overview.pdf">over 40,000 square miles</a> of the Gulf of Mexico.</p>
<p>This spill was the worst environmental disaster in U.S. history. After a dreadful start, BP and its drilling partners removed most of the oil from Gulf coast beaches over the next several years; the visible sheen of the oil slick eventually disappeared as well. But studies indicate that it will take parts of the Gulf, such as <a href="https://theconversation.com/scientists-have-found-oil-from-the-deepwater-horizon-blowout-in-fishes-livers-and-on-the-deep-ocean-floor-133145">deep ocean ecosystems</a>, decades to recover. We may never know the full extent of the ecological damage.</p>
<p>BP paid dearly for the reckless corporate culture of <a href="https://www.propublica.org/article/years-of-internal-bp-probes-warned-that-neglect-could-lead-to-accidents">cost-cutting and excessive risk-taking</a> that caused the spill: <a href="https://www.theguardian.com/business/2018/jan/16/bps-deepwater-horizon-bill-tops-65bn">more than US$60 billion</a> in criminal and civil penalties, natural resource damages, economic claims and cleanup costs. Indeed, from a legal standpoint, the legacy of the Gulf oil spill is the sheer size of the payout, which ushered in an era of multibillion dollar criminal and civil penalties for environmental and other corporate crimes.</p>
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<figcaption><span class="caption">Scientists still don’t know the total environmental impacts of the Deepwater Horizon spill.</span></figcaption>
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<p>In most other respects, however, the legal landscape governing offshore drilling is unchanged from before the spill. The U.S. still outsources drilling safety and spill cleanup to industry, which has proven far more adept at extracting oil than protecting the environment.</p>
<p>Meanwhile, Americans have yet to heed the spill’s wake-up call to reduce our nation’s dependence on fossil fuels and accelerate the transition to clean energy. From my perspective as an <a href="https://www.law.umich.edu/FacultyBio/Pages/FacultyBio.aspx?FacID=duhlmann">environmental law professor</a> and the former chief of the Justice Department’s Environmental Crimes Section, that failure stands out as the continuing tragedy of the spill.</p>
<h2>Holding BP accountable</h2>
<p>BP endured years of costly litigation in the wake of the Gulf oil spill. In 2012 the company reached an agreement with the Justice Department to <a href="https://www.justice.gov/opa/pr/bp-exploration-and-production-inc-agrees-plead-guilty-felony-manslaughter-environmental">plead guilty to 14 criminal counts</a>, including manslaughter, obstruction of Congress and violations of the <a href="https://www.epa.gov/laws-regulations/history-clean-water-act">Clean Water Act</a> and the <a href="https://theconversation.com/beyond-borders-why-we-need-global-action-to-protect-migratory-birds-62070">Migratory Bird Treaty Act</a>.</p>
<p>The company paid a $4.5 billion dollar criminal penalty – the largest in U.S. history at that time. For comparison, the previous record was a $1.3 billion criminal fine paid by Pfizer for <a href="https://www.justice.gov/opa/pr/justice-department-announces-largest-health-care-fraud-settlement-its-history">pharmaceutical fraud</a> in 2009. The largest penalty for environmental crime was the $125 million fine imposed on Exxon for the <a href="https://www.justice.gov/opa/pr/united-states-and-state-alaska-opt-not-recover-additional-damages-exxon-mobil-under-reopener">Valdez oil spill</a> in 1990.</p>
<p>In 2015 the Justice Department and Gulf coast states reached a record civil settlement with BP that <a href="https://www.noaa.gov/explainers/deepwater-horizon-oil-spill-settlements-where-money-went">totaled over $20 billion</a>, including a $5.5 billion civil penalty under the Clean Water Act, $8.1 billion in natural resource damages and $5.9 billion in payments to state and local governments. BP also paid about $15 billion in cleanup costs and another $20 billion in economic damages to companies and individuals harmed by the spill.</p>
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<a href="https://images.theconversation.com/files/329812/original/file-20200422-47804-11kdxog.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/329812/original/file-20200422-47804-11kdxog.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/329812/original/file-20200422-47804-11kdxog.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=403&fit=crop&dpr=1 600w, https://images.theconversation.com/files/329812/original/file-20200422-47804-11kdxog.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=403&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/329812/original/file-20200422-47804-11kdxog.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=403&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/329812/original/file-20200422-47804-11kdxog.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=507&fit=crop&dpr=1 754w, https://images.theconversation.com/files/329812/original/file-20200422-47804-11kdxog.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=507&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/329812/original/file-20200422-47804-11kdxog.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=507&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Activists at the Hale Boggs Federal Building in New Orleans on the first day of the trial over the Deepwater Horizon oil rig spill, February 25, 2013.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/activists-holds-signs-during-a-protest-in-front-of-the-hale-news-photo/162642094?adppopup=true">Sean Gardner/Getty Images</a></span>
</figcaption>
</figure>
<p>The BP settlements set benchmarks that influenced the size of penalties imposed for subsequent corporate wrongdoing. Volkswagen paid more than $30 billion for the 2015 revelation that it <a href="https://www.wsj.com/articles/dieselgate-has-brought-vw-benefits-too-11552660674">cheated on diesel emission standards</a> by rigging software in its cars. Bank of America and JPMorgan Chase have paid <a href="https://www.marketwatch.com/story/banks-have-been-fined-a-staggering-243-billion-since-the-financial-crisis-2018-02-20">billions of dollars</a> in fines since the 2008-2009 financial crisis for misconduct that included mortgage fraud.</p>
<p>BP was worth more than $180 billion at the time of the Gulf oil spill and is still one of the largest companies in the world. But it was on the <a href="https://www.cnn.com/2010/US/11/09/gulf.oil.disaster/index.html">brink of collapse</a> after the spill, and few other companies could afford the costs BP incurred. From a corporate accountability and deterrence standpoint, the settlements were a significant achievement that should deter similar misconduct.</p>
<h2>No new laws</h2>
<p>Apart from the landmark settlements, the legal legacy of the Gulf oil spill is more modest than previous spills that motivated Congress to enact new laws. The <a href="https://response.restoration.noaa.gov/about/media/45-years-after-santa-barbara-oil-spill-looking-historic-disaster-through-technology.html">1969 Santa Barbara oil spill</a> helped prompt passage of the <a href="https://www.epa.gov/laws-regulations/history-clean-water-act">Clean Water Act</a> in 1972, which transformed rivers and streams that were open sewers into fishable and swimmable waters. The Exxon Valdez spill in 1989 resulted in the <a href="https://archive.epa.gov/emergencies/content/lawsregs/web/html/opaover.html">Oil Pollution Act of 1990</a>, which made it possible for companies like BP to pay civil penalties for oil spills in addition to criminal fines.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1251248433257762817"}"></div></p>
<p>In response to the Deepwater Horizon spill, Congress passed the <a href="https://www.restorethegulf.gov/history/about-restore-act">RESTORE Act</a> in 2012, but this served only to ensure that civil penalties paid to the federal government by BP and its partners would be shared with Gulf coast states. The law was silent about drilling safety and future oil spills. Congress also did not act on recommendations made by the <a href="https://www.govinfo.gov/content/pkg/GPO-OILCOMMISSION/pdf/GPO-OILCOMMISSION.pdf">bipartisan commission</a> that President Obama appointed to investigate the spill and offshore drilling, such as <a href="https://theconversation.com/a-decade-after-the-deepwater-horizon-explosion-offshore-drilling-is-still-unsafe-132846">increasing energy companies’ liability limits for oil spills</a>.</p>
<p>In terms of new regulations, the initial response was promising. The Obama administration imposed a brief moratorium on offshore drilling, reorganized the relevant offices within the Interior Department and enacted safety rules to prevent future oil spills. But the Trump administration has <a href="https://theconversation.com/trumps-offshore-oil-drilling-plans-ignore-the-lessons-of-bp-deepwater-horizon-89570">reversed many of these rules</a> and pushed to expand offshore drilling, even though this policy is <a href="https://theconversation.com/trump-offshore-drilling-plan-may-be-dead-in-the-water-but-there-are-better-ways-to-lead-on-energy-116121">unpopular in many coastal states</a> and faces significant legal obstacles.</p>
<p>The net result, 10 years after the Gulf oil spill, is that the U.S. still depends on companies like BP to conduct their activities safely, despite painful experience that doing so is risky. Today the oil industry is <a href="https://www.nytimes.com/2020/04/19/climate/deepwater-horizon-anniversary.html">more committed to well containment efforts</a> than it was in 2010, but there is no indication that a blowout today would be any less of a disaster.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/329817/original/file-20200422-47804-1mnund9.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/329817/original/file-20200422-47804-1mnund9.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/329817/original/file-20200422-47804-1mnund9.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=464&fit=crop&dpr=1 600w, https://images.theconversation.com/files/329817/original/file-20200422-47804-1mnund9.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=464&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/329817/original/file-20200422-47804-1mnund9.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=464&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/329817/original/file-20200422-47804-1mnund9.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=583&fit=crop&dpr=1 754w, https://images.theconversation.com/files/329817/original/file-20200422-47804-1mnund9.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=583&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/329817/original/file-20200422-47804-1mnund9.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=583&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Planning areas (blue) and active leases (green) for offshore oil and gas production in the Gulf of Mexico as of April 1, 2020.</span>
<span class="attribution"><a class="source" href="https://www.boem.gov/sites/default/files/documents/oil-gas-energy/leasing/regional-leasing/gulf-mexico-region/Lease%20Statistics%20April%202020.pdf">BOEM</a></span>
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</figure>
<p>The U.S. has not quenched its insatiable thirst for oil, even after the Gulf oil spill laid bare the risks of offshore drilling and evidence has mounted about the havoc of climate disruption. U.S. oil production <a href="https://www.eia.gov/todayinenergy/detail.php?id=40032">set records through 2019</a> and may do so again once the nation emerges from the COVID-19 pandemic.</p>
<p>BP paid for its reckless conduct in the Gulf. The question that remains a decade later is when the U.S. will address its societal responsibility for the disaster.</p>
<p>[<em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://theconversation.com/us/newsletters/weekly-highlights-61?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=weeklysmart">You can get our highlights each weekend</a>.]</p><img src="https://counter.theconversation.com/content/136905/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David M. Uhlmann served for 17 years at the U.S. Department of Justice, the last seven as chief of the Environmental Crimes Section, where he was the top environmental crimes prosecutor in the country. He led an office of approximately 40 prosecutors responsible for the prosecution of environmental and wildlife crimes.</span></em></p>The Deepwater Horizon disaster set new records for holding polluters to account. But it had much less impact on laws regulating offshore drilling or US oil dependence.David M. Uhlmann, Jeffrey F. Liss Professor from Practice and Director, Environmental Law and Policy Program, University of MichiganLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1355342020-04-13T17:19:46Z2020-04-13T17:19:46ZCoronavirus triage protocols: Hard choices over ventilator shortages shouldn’t put doctors at legal risk<figure><img src="https://images.theconversation.com/files/326704/original/file-20200409-109213-89d2og.jpg?ixlib=rb-1.1.0&rect=75%2C501%2C3519%2C2031&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A health-care worker in protective gear at a COVID-19 assessment centre at the Scarborough Hospital in Scarborough, Ont., on April 3, 2020. </span> <span class="attribution"><span class="source">THE CANADIAN PRESS/Nathan Denette</span></span></figcaption></figure><p>Across Canada, the coronavirus pandemic is increasing the demand for <a href="https://www.cbc.ca/news/canada/toronto/covid-19-icu-beds-1.5521394">already scarce critical care resources</a>. In the coming weeks, there is a very real chance that there <a href="https://www.covid-19-mc.ca">won’t be enough ventilators and critical care beds for everyone who needs them</a>. Difficult decisions will have to be made about who gets what. Sick individuals who might survive if put on a ventilator may be denied access to one, or even removed from one they were already on, in order to save someone else.</p>
<p>In anticipation of this, <a href="https://www.thestar.com/news/canada/2020/03/29/ontario-developing-last-resort-guidelines-on-which-patients-to-prioritize-if-hospitals-are-overwhelmed-by-critical-covid-19-cases.html">provincial and territorial governments now face the challenge of authorizing triage protocols</a>: documents that spell out the nature and process of allocation decisions. The normal rules for allocating resources just <a href="https://www.ctvnews.ca/health/coronavirus/who-gets-a-ventilator-in-the-covid-19-crisis-1.4876069">don’t work during a pandemic</a>. When critical care units can no longer admit everyone who wants and might benefit from critical care, new rules must be set. Who lives and who dies? Who decides?</p>
<h2>Triage protocols vs. standards of care</h2>
<p>The best case scenario is that these protocols will not need to be introduced, and it will be possible to meet all clinical needs through mobilization, management and sharing of resources. However, given the uncertainty about the future spread of the virus, we should hope for the best but prepare for the worst. Which means provincial and territorial governments should prepare critical care triage protocols, as <a href="https://www.thestar.com/news/canada/2020/03/29/ontario-developing-last-resort-guidelines-on-which-patients-to-prioritize-if-hospitals-are-overwhelmed-by-critical-covid-19-cases.html">Ontario has done</a>.</p>
<p>However, for these protocols to work and not add more stress to our already over-stressed health-care providers, the authorities — including governments, prosecutorial services and professional regulatory bodies — must take steps to protect health-care providers. Authorities must ensure that health-care providers who follow these protocols will not face criminal or civil liability, or discipline by regulatory colleges, and ensure that health-care providers are aware of this.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/326707/original/file-20200409-115270-1eaajjx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/326707/original/file-20200409-115270-1eaajjx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/326707/original/file-20200409-115270-1eaajjx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/326707/original/file-20200409-115270-1eaajjx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/326707/original/file-20200409-115270-1eaajjx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/326707/original/file-20200409-115270-1eaajjx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/326707/original/file-20200409-115270-1eaajjx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Medical staffers work in the Intensive Care Unit of the Maria Pia Hospital in Turin, Italy on April 7, 2020.</span>
<span class="attribution"><span class="source">(Marco Alpozzi/LaPresse via AP)</span></span>
</figcaption>
</figure>
<p>The problem is that critical care triage protocols direct health-care providers to <a href="https://doi.org/10.1056/NEJMsb2005114">deviate from their normal duties and standards of care</a>. They may direct providers to prioritize based on survival of the most people, or first-come-first-served or lottery. Furthermore, protocols may direct providers to discriminate based on grounds that are usually prohibited <a href="https://dx.doi.org/10.1503%2Fcmaj.060911">such as age</a>. </p>
<h2>Liability risks</h2>
<p>Normally, if a physician removes a ventilator from a patient who might survive, with neither the patient’s nor their substitute decision-maker’s consent, they might be charged with <a href="https://laws-lois.justice.gc.ca/eng/acts/c-46/page-50.html#h-119680">criminal negligence causing death</a>. The patient’s family might <a href="http://canlii.ca/t/j21lm">sue for negligence</a> or claim a breach of <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13290/index.do">provincial consent legislation</a>. The province’s college of physicians and surgeons might discipline the physician for violating their <a href="https://www.cpso.on.ca/Physicians/Policies-Guidance/Policies/Planning-for-and-Providing-Quality-End-of-Life-Car">duties to the patient and standards of practice</a>. </p>
<p>However, a critical care triage protocol may direct a physician to do just that.</p>
<p>It’s possible that a court would not convict a health-care provider on criminal charges or find them civilly liable. It’s possible that a regulatory college would not find that a health-care provider breached professional standards. </p>
<p>On the other hand, it’s possible that there could be criminal charges, civil lawsuits and disciplinary hearings. It’s possible there could be liability and sanctions. Thus, these triage protocols can create both real and <a href="https://twitter.com/jesshwprince/status/1247010464380289026">perceived risks for health-care providers</a>. </p>
<h2>Protection and reassurance for providers</h2>
<p>Fortunately, the authorities can protect providers from both liability and regulatory sanction, which can reassure providers. I will take Nova Scotia as an example; however, it is worth noting that the same or similar steps are available in other provinces and territories. </p>
<p>For criminal liability, the Nova Scotia director of public prosecutions could issue a directive indicating that criminal charges will not be prosecuted if health-care providers comply with the triage protocol and professional standards of their regulatory body. There are precedents for this; the <a href="https://mjlhmcgill.files.wordpress.com/2017/07/mjlh-vol-vi-no-2-downiewhite.pdf">attorney general of British Columbia</a> and the <a href="https://novascotia.ca/pps/publications/ca_manual/Physician-Assisted-Death.pdf">Nova Scotia director of public prosecutions</a> have previously issued such directives about end-of-life care. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/326708/original/file-20200409-86219-1p0b8dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/326708/original/file-20200409-86219-1p0b8dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=409&fit=crop&dpr=1 600w, https://images.theconversation.com/files/326708/original/file-20200409-86219-1p0b8dv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=409&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/326708/original/file-20200409-86219-1p0b8dv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=409&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/326708/original/file-20200409-86219-1p0b8dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=514&fit=crop&dpr=1 754w, https://images.theconversation.com/files/326708/original/file-20200409-86219-1p0b8dv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=514&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/326708/original/file-20200409-86219-1p0b8dv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=514&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">An engineer attaches the breathing tubes to a prototype of an emergency response ventilator in Vancouver on March 27, 2020.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Jonathan Hayward</span></span>
</figcaption>
</figure>
<p>Furthermore, the federal government could publish a guidance document indicating its endorsement of a particular triage protocol or of triage protocols in general. While this would not have the force of law, it could be used in court should there be a need to defend against criminal charges laid against a practitioner for complying with their provincial or territorial triage protocol.</p>
<p>For civil liability, the minister of municipal affairs could approve a Nova Scotia critical care triage protocol as an emergency management plan under the <a href="https://nslegislature.ca/sites/default/files/legc/statutes/emergency%20management.pdf">Emergency Management Act</a>. This would ensure, under the liability provisions of that act, that health-care providers are protected from any civil liability for actions taken that comply with the protocol.</p>
<p>For professional sanction, the regulatory bodies (such as colleges of physicians and surgeons) could issue <a href="https://cpsns.ns.ca/professional-standard-regarding-medical-assistance-in-dying-for-nova-scotian-physicians/">professional standards</a> stating that health-care providers must follow a triggered protocol and that health-care providers will not be subject to sanction if they do so.</p>
<p>If these steps are both taken and publicized by authorities and <a href="https://www.cmpa-acpm.ca/en/home">insurers</a> alike, health-care providers will be able to move forward without fear, safe in the knowledge that they are protected. This will allow health-care providers to follow triage protocols, which are established in accordance with the values and goals that society believes should guide the allocation of scarce resources during the present crisis.</p><img src="https://counter.theconversation.com/content/135534/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jocelyn Downie does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>If COVID-19 causes a ventilator shortage in hospitals, triage protocols will dictate who gets life-saving treatment. Health-care workers need protection from liability for following those protocols.Jocelyn Downie, James Palmer Chair in Public Policy and Law, University Research Professor, Dalhousie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1265102019-11-12T19:05:00Z2019-11-12T19:05:00ZVictims of child sex abuse still face significant legal barriers suing churches - here’s why<figure><img src="https://images.theconversation.com/files/301176/original/file-20191112-178506-xaxjxf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Even with the National Redress Scheme, pursuing justice through civil litigation is still hugely important to many victims of priest sex abuse.</span> <span class="attribution"><span class="source">David Crosling/AAP</span></span></figcaption></figure><p>Following the <a href="https://www.childabuseroyalcommission.gov.au/">Royal Commission into Institutional Responses to Child Sexual Abuse</a>, we are witnessing a wave of legal reforms across Australia aimed at helping survivors seek justice. </p>
<p>Most visibly, there is the <a href="https://www.nationalredress.gov.au/">National Redress Scheme</a>, which provides victims access to counselling, a response from the institution where they were abused and payment of up to $150,000.</p>
<p>But for those who slip through the cracks of the scheme, as well as future victims, pursuing justice through civil litigation is still hugely important. </p>
<p>As traumatising as legal action can be, suing is not just a means to access compensation. It can also provide formal legal recognition of the abuse, and is a powerful way to hold the institution directly accountable.</p>
<h2>Legal hurdles for victims suing institutions</h2>
<p>Historically, there have been several legal roadblocks for victims trying to sue the organisations where they were abused.</p>
<ul>
<li><p>Statutes of limitations can prevent lawsuits if it takes many years for victims to acknowledge the abuse and take action.</p></li>
<li><p>It can also be hard to identify a legal entity to sue, given that many religious institutions are unincorporated. This hurdle is commonly known as the “Ellis defence”, after the case brought by an altar boy against the Catholic Church that <a href="https://www.smh.com.au/national/sexual-abuse-victim-john-ellis-resumes-battle-with-cardinal-george-pell-20140309-34fga.html">failed for this reason</a>.</p></li>
<li><p>For an organisation to be held responsible for abuse, victims must establish a close connection between the abuser and institution. Institutional responsibility for employees’ wrongful actions – known as “<a href="http://www.hcourt.gov.au/assets/publications/speeches/current-justices/kiefelj/KiefelCJ25Aug2017.pdf">vicarious liability</a>” – typically covers carelessness in the workplace but doesn’t usually extend to serious criminal acts like assault. (A separate issue: historically recognised duties owed by schools and hospitals are also not owed by other organisations like churches.)</p></li>
</ul>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/301200/original/file-20191112-178494-t3o78e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/301200/original/file-20191112-178494-t3o78e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/301200/original/file-20191112-178494-t3o78e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/301200/original/file-20191112-178494-t3o78e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/301200/original/file-20191112-178494-t3o78e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/301200/original/file-20191112-178494-t3o78e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/301200/original/file-20191112-178494-t3o78e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Victim John Ellis speaking before the start of the royal commission into child sex abuse.</span>
<span class="attribution"><span class="source">Paul Miller/AAP</span></span>
</figcaption>
</figure>
<p>Since the royal commission identified these barriers in a 2014 <a href="https://www.childabuseroyalcommission.gov.au/redress-and-civil-litigation">report on redress and civil litigation</a>, states and territories have begun introducing new laws to <a href="https://www.abc.net.au/news/2018-09-19/sa-removes-time-limits-for-child-abuse-compensation/10270016">change their statutes of limitations</a> and <a href="https://www.abc.net.au/news/2019-01-01/catholic-church-ellis-defence-scrapped-from-new-years-day/10675890">bypass the Ellis defence</a>. </p>
<p>However, addressing the legal responsibility of institutions for the actions of individual perpetrators has proven more complex.</p>
<h2>The confusion over liability in Victoria</h2>
<p>Some states are moving forward with legal reforms in this area. NSW, for instance, <a href="https://www.legislation.nsw.gov.au/acts/2018-56.pdf">overhauled its laws</a> last year to <a href="https://www.justice.nsw.gov.au/Pages/media-news/media-releases/2018/justice-for-child-abuse-survivors.aspx">extend vicarious liability</a> to include non-employees like volunteers or religious officers who take advantage of their positions to carry out child abuse.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1052521885928288257"}"></div></p>
<p>Tasmania <a href="http://www.parliament.tas.gov.au/bills/pdf/36_of_2019.pdf">has now introduced a bill</a> taking a similar approach. Several other jurisdictions – ACT, WA and SA – have yet to take any action on this issue. They are still responding to the royal commission’s recommendations, so further legislation may be forthcoming.</p>
<p>Victoria, meanwhile, has taken a different approach that is leaving some victims behind. (It’s a model that <a href="https://www.legislation.qld.gov.au/view/whole/html/asmade/act-2019-034">Queensland has also recently adopted</a>, with a bill that passed into law last month.) </p>
<p>Victoria’s law is especially disappointing given the state actually led the way with legal reforms to help victims of child sex abuse, based on a <a href="https://www.parliament.vic.gov.au/fcdc/article/1788">700-page report</a> by a parliamentary inquiry that was set up before the royal commission. </p>
<p>The Victorian report looked in detail at the legal hurdles that victims face, but its recommendations showed a misunderstanding of the law when it comes to the liability of institutions where abuse occurs. </p>
<p>Specifically, it misunderstood how vicarious liability works.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-royal-commissions-final-report-has-landed-now-to-make-sure-there-is-an-adequate-redress-scheme-89158">The royal commission's final report has landed – now to make sure there is an adequate redress scheme</a>
</strong>
</em>
</p>
<hr>
<h2>What is vicarious liability?</h2>
<p><a href="https://www.humanrights.gov.au/quick-guide/12107">Vicarious liability</a> is a form of strict liability under which an employer can be held responsible for the actions of employees regardless of fault. This is so even when it has taken all reasonable steps to prevent the misconduct. </p>
<p>For example, a bus company may be liable for harm to passengers caused by a careless bus driver, even when it did everything it could to encourage safe driving. </p>
<p>However, <a href="https://jade.io/article/68410">previous court decisions</a> have suggested it wasn’t possible for employers like schools to be held vicariously liable for the abuse of children by teachers. The reason: such liability doesn’t usually extend to serious criminal acts because they weren’t committed within the “course of employment”. </p>
<p>Victoria’s child sex abuse report recommended fixing this legal complexity by importing a model from discrimination law. </p>
<p>In this <a href="https://www.humanrights.gov.au/our-work/employers/vicarious-liability">model</a>, an organisation is <em>presumed</em> to be responsible for the acts of its employees but can escape liability by showing it took reasonable care to avoid the wrongful conduct.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-catholic-church-is-investigating-george-pells-case-what-does-that-mean-113187">The Catholic Church is investigating George Pell's case. What does that mean?</a>
</strong>
</em>
</p>
<hr>
<p>Eager to remove the barriers faced by child sex abuse victims, the Victorian government <a href="https://www.justice.vic.gov.au/safer-communities/protecting-children-and-families/betrayal-of-trust-fact-sheet-the-new">changed its laws</a> in 2017 to import the new model. But it ignored two key developments that happened while the new law was being debated in parliament.</p>
<p>First, the royal commission provided a more thorough analysis of the laws and recommended imposing strict liability on specific kinds of institutions responsible for the care, supervision or control of children.</p>
<p>Second, in 2016, a High Court case involving child sexual abuse at a boarding school,
<a href="https://blogs.unimelb.edu.au/opinionsonhigh/2016/10/05/prince-alfred-college-case-page/">Prince Alfred College v ADC</a>, signalled an entirely new approach courts will take with regard to vicarious liability in such cases. </p>
<p>The High Court stated that if an employer puts an employee in a position of trust, power and the ability to achieve intimacy with a victim, the organisation will be held liable if the employee takes advantage of the situation to abuse a child. </p>
<p>The High Court’s new approach also has its gaps. Victims who were abused by a contractor rather than an employee might struggle to establish vicarious liability. We’re also yet to see whether courts consider clergy as employees for this purpose.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/301202/original/file-20191112-178525-f85q2z.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/301202/original/file-20191112-178525-f85q2z.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/301202/original/file-20191112-178525-f85q2z.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/301202/original/file-20191112-178525-f85q2z.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/301202/original/file-20191112-178525-f85q2z.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/301202/original/file-20191112-178525-f85q2z.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/301202/original/file-20191112-178525-f85q2z.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A victim of abuse at a private Brisbane school after giving evidence to the child sex abuse royal commission.</span>
<span class="attribution"><span class="source">Dan Peled/AAP</span></span>
</figcaption>
</figure>
<h2>More reforms are needed</h2>
<p>Victorian MPs <a href="https://www.parliament.vic.gov.au/images/stories/daily-hansard/Assembly_2016/Assembly_Daily_Extract_Wednesday_23_November_2016_from_Book_16.pdf">saw the state’s new laws</a> as “balancing the interests” of organisations and victims of abuse. They also believed the laws avoided placing “undue burden” on organisations by allowing them to escape liability if they have taken reasonable care. </p>
<p>But this ignored the courts’ new approach to vicarious liability and the fact that strict liability may still apply to organisations that took reasonable care. </p>
<p>Ultimately, the government has done a disservice to survivors of child abuse and made the legal situation murkier rather than clearer for organisations and victims alike.</p>
<p>The bottom line is that Victoria – and other states and territories – still need further reform in this area if they really want to help victims of institutional child abuse achieve justice in the courts.</p>
<hr>
<p><em>This story has been amended since publication to correct that the Queensland bill has now passed.</em> </p>
<hr>
<p><em>This story is adapted from a forthcoming article in the UNSW Law Journal by Laura Griffin and Gemma Briffa.</em></p><img src="https://counter.theconversation.com/content/126510/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Laura Griffin does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Addressing the legal responsibility of institutions for the actions of abusers has proven incredibly complex. Victoria thought it was making things easier for victims, but the opposite is true.Laura Griffin, Lecturer, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1130882019-04-02T10:40:48Z2019-04-02T10:40:48ZBrain scan evidence in criminal sentencing: A blessing and a curse<figure><img src="https://images.theconversation.com/files/266421/original/file-20190328-139341-f9fshr.jpg?ixlib=rb-1.1.0&rect=2362%2C0%2C3026%2C2029&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Which way does neurobiological evidence tip the scales in sentencing?</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/statue-justice-lady-iustitia-justitia-roman-598268906?src=kZkJ7JPoM75s1nmHUzmaqA-1-1">Alexander Kirch/Shutterstock.com</a></span></figcaption></figure><p>Brain evidence is playing an <a href="https://scholarship.law.duke.edu/faculty_scholarship/3578/">increasing role in criminal trials</a> in the United States. An analysis indicates that brain evidence such as MRI or CAT scans – meant to provide proof of abnormalities, brain damage or disorder in defendants – was used for leniency in approximately 5 percent of murder cases at the appellate level. This number jumps to an astounding 25 percent in death penalty trials. In these cases, the evidence is meant to show that the defendant lacked the capacity to control his action. In essence, “My brain made me do it.” </p>
<p>But does evidence of neurobiological disorder or abnormality tend to help or hurt the defendant? </p>
<p>Legal theorists have <a href="https://doi.org/10.1007/978-3-642-21541-4_19">previously portrayed physical evidence of brain dysfunction</a> as <a href="https://doi.org/10.1177/009885880703300214">a double-edged sword</a>. On the one hand, it might decrease a judge’s or juror’s desire to punish by minimizing the offender’s perceived responsibility for his transgressions. The thinking would be that the crime resulted from disordered brain activity, not any choice on the part of the offender. </p>
<p>On the other hand, brain evidence could increase punitive motivations toward the offender by making him seem more dangerous. That is, if the offender’s brain truly “made him” commit the crime, there is an increased risk such behavior could occur again, even multiple times, in the future. </p>
<p>To tease apart these conflicting motivations, <a href="https://scholar.google.com/citations?user=RKrUH5YAAAAJ&hl=en&oi=ao">our</a> <a href="https://scholar.google.com/citations?user=tnhHv3UAAAAJ&hl=en&oi=ao">team</a> of <a href="https://scholar.google.com/citations?user=0kgaYeoAAAAJ&hl=en&oi=sra">cognitive neuroscientists</a>, a <a href="https://www.bcm.edu/people/view/jennifer-blumenthal-barby-ph-d-m-a/b18fdd06-ffed-11e2-be68-080027880ca6">medical bioethicist</a> and a <a href="https://scholar.google.com/citations?user=lbxbspMAAAAJ&hl=en&oi=sra">philosopher</a> investigated how people tend to <a href="https://doi.org/10.1371/journal.pone.0210584">weigh neurobiological evidence</a> when deciding on criminal sentences.</p>
<h2>Less prison, more involuntary hospitalization</h2>
<p>For this experiment, our team recruited 330 volunteers to read through a criminal case summary describing a defendant found guilty of sexual assault. Before introducing any mental health evidence, we asked for an initial sentence recommendation: If our volunteers were really deciding this case, what would they have wanted to see happen to the defendant? This provided us with a baseline estimate of how much they wanted to punish the defendant.</p>
<p>Next, we filled participants in on the defendant’s mental health status using evidence of an impulse control disorder described either as neurobiological or psychological, and treatable or untreatable. (These experimental conditions were also accompanied by a control condition in which the defendant was deemed healthy.) Participants could then alter their original criminal sentencing judgments by allocating time between prison sentencing and involuntary hospitalization, however they saw fit.</p>
<p>It turned out that neurobiological evidence elicited both shorter prison sentences and longer involuntary hospitalization terms compared to equivalent psychological evidence. That is, for the same mental disorder, people assigned different levels of blame, moral responsibility and punishment based on whether they had a neurologist’s testimony versus a psychologist’s testimony to support the diagnosis.</p>
<p><iframe id="ZwPyH" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/ZwPyH/1/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>Our key discovery was that when mental health evidence was presented as having a neurobiological cause, laypeople assigned more importance to it. Paradoxically, this effect both favored and disfavored the defendant, depending on the punitive options available. So while prison sentences may be mitigated by the presentation of neurobiological evidence, the same evidence may increase the defendant’s risk of being involuntarily hospitalized.</p>
<p>Treatable disorders elicited both shorter prison sentences and involuntary hospitalization terms compared to untreatable disorders, yet this pattern could not account for the double-edged effect of neurobiological evidence.</p>
<h2>Punishment versus protection</h2>
<p>Previous research has searched for this apparent <a href="https://doi.org/10.1126/science.1219569">double-edged effect of neurobiological evidence</a> – that it may have both aggravating and mitigating effects on criminal sentences. But prior studies have been inconclusive.</p>
<p>One possible reason for previous failures to observe the double-edged effect could be that participants were restricted to simplistic punishment measures. By relying on only a single type of punishment – in most cases, prison sentencing – earlier studies might have missed the dual competing motivations: to get justice versus to protect society. </p>
<p>We accounted for this possibility by offering participants two punishment options: commitment to prison versus mental hospital. That’s how we were able to identify that neurobiological evidence seems likely to result in a shorter prison sentence or a longer involuntary commitment to a mental hospital.</p>
<p>The effects we observed may have far-reaching implications for the law, which regularly confronts questions about the <a href="https://doi.org/10.1038/s41398-018-0274-8">quality and presentation format of mental health evidence</a>. For example, how can policymakers best manage evidentiary presentation bias? Should neurobiological evidence always be accompanied by corresponding psychological or behavioral evidence, or even warnings of potential biasing effects? If a defendant were to be excused in the case of mental illness, should jurors be made aware of treatment options? Should judges receive a legal education on neurobiological evidence?</p>
<p>Brain evidence will likely become even more common in the years ahead, and the judicial system will need to grapple with how best to use it.</p><img src="https://counter.theconversation.com/content/113088/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Corey Hill Allen received support from a grant from the John Templeton Foundation (<a href="http://www.templeton.org">www.templeton.org</a>) via the Summer Seminars on Neuroscience and Philosophy at Duke University (Subaward #: 283-0635). The opinions expressed in this publication are those of the author and do not necessarily reflect the views of the John Templeton Foundation. The funders had no role in study design, data collection and analysis, decision to publish, or preparation of the manuscript.</span></em></p><p class="fine-print"><em><span>Eyal Aharoni received support from a grant from the John Templeton Foundation (<a href="http://www.templeton.org">www.templeton.org</a>) via the Summer Seminars on Neuroscience and Philosophy at Duke University (Subaward #: 283-0635). The opinions expressed in this publication are those of the author and do not necessarily reflect the views of the John Templeton Foundation. The funders had no role in study design, data collection and analysis, decision to publish, or preparation of the manuscript.</span></em></p>How do jurors use different kinds of information about mental illness when making sentencing decisions? An experiment finds that neurobiological evidence could harm or help defendants.Corey Hill Allen, Ph.D. Candidate in Neuroscience, Georgia State UniversityEyal Aharoni, Assistant Professor of Psychology, Philosophy, and Neuroscience, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1045402018-10-09T21:44:18Z2018-10-09T21:44:18ZWhat young people can learn from the Kavanaugh hearings<figure><img src="https://images.theconversation.com/files/239590/original/file-20181007-72113-qcwyla.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C613%2C613&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Teens are questioning the suggestion that they can’t get their stories straight and that abusive behaviour is to be expected at their age. Here teens from the 1980s pose for a time capsule.</span> <span class="attribution"><a class="source" href="https://www.vintag.es/2016/01/snapshots-of-teenagers-in-1980s.html">Vintage Everyday</a></span></figcaption></figure><p>Against the backdrop of the recent <a href="https://www.cnn.com/2018/10/06/politics/kavanaugh-final-confirmation-vote/index.html">Senate confirmation hearings to confirm Brett Kavanaugh to the U.S. Supreme Court</a>, young people — especially those aged 15 or 17 — are naturally reflecting on what is being said about actions associated with adolescence.</p>
<p>Because a major factor in Kavanaugh’s hearings was whether he sexually assaulted Christine Blasey Ford when they were teenagers, it’s a good time to engage in complex discussions with youth about law and responsibility.</p>
<p>Teens should challenge any suggestion that abusive behaviour (whether engaging in it or being subject to it) is to be expected at their age. They should be questioning the message that adolescents can’t, or won’t, be held responsible for the consequences of what they do and what they say.</p>
<p>Young people’s brains are still developing, their assessment of risk immature and their experiences limited. They are necessarily <a href="https://www.harpercollins.com/9780062067869/the-teenage-brain/">figuring things out about themselves and their relationships with others</a>. </p>
<p>Acknowledging that development and limited experience is a feature of adolescence, however, doesn’t get young people off the hook.</p>
<p>As a professor of the law and <a href="http://kidsdefinetheline.ca/staff/dr-shauna-van-praagh-2/">an expert on children in law</a>, I introduce first year law students to the complexities of <a href="https://chantier9adaj.openum.ca/publications/sois-sage-responsibility-for-childishness-in-the-law-of-civil-wrongs/">holding young people responsible in a meaningful way</a> which means adapting to their developing abilities. </p>
<h2>Legal concepts of agency and accountability</h2>
<p>Foundational legal concepts like those of agency, consent and accountability all display flexibility in the context of children and youth. But flexibility and responsiveness to the capacities and challenges connected to age don’t mean that anything goes. </p>
<p>There is a meaningful space — space reflected in legal rules — between demanding that young people act like adults, on one hand, and relieving them of significant responsibility, on the other.</p>
<p>In the context of liability for negligence, for example, legal systems typically include a requirement that young people act reasonably so as to avoid harming others — but the assessment of their actions will take into account age and capacity. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/239591/original/file-20181007-72113-1funybf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/239591/original/file-20181007-72113-1funybf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=434&fit=crop&dpr=1 600w, https://images.theconversation.com/files/239591/original/file-20181007-72113-1funybf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=434&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/239591/original/file-20181007-72113-1funybf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=434&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/239591/original/file-20181007-72113-1funybf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=545&fit=crop&dpr=1 754w, https://images.theconversation.com/files/239591/original/file-20181007-72113-1funybf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=545&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/239591/original/file-20181007-72113-1funybf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=545&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Legally, teens are required to act reasonably so as to avoid harming others.</span>
<span class="attribution"><a class="source" href="https://www.vintag.es/2016/01/snapshots-of-teenagers-in-1980s.html">Vintage Everyday</a></span>
</figcaption>
</figure>
<p>It’s important to distinguish this requirement of “reasonable” behaviour from demanding only “average” or “ordinary” behaviour. In other words, as a young person, you have to repair the harm you’ve done if you should have acted otherwise. The question isn’t “How did everyone around you act?” Rather, it’s: “What was the right way to behave?”</p>
<h2>Age is not a way to avoid scrutiny</h2>
<p>An approach that allows for the progressive development of understanding and control, while insisting on appropriate responsibility in relation to others, is not easy to articulate or implement with precision. </p>
<p>Across a spectrum of sites in national and international law, in contexts ranging from youth criminal justice to civil liability to accountability of child soldiers, we find variations on this approach. </p>
<p>Age is incorporated into the analysis of accountability, but never simply offered as a way to avoid any scrutiny of behaviour.</p>
<p>At the same time that young people are held accountable in law for the consequences of their unreasonable or intentionally wrongful actions, they also expect to be listened to, believed and treated with respect and dignity. So, for example, in the context of abuse by adults in positions of trust and authority, young people need to be reassured that the legal rules set out a path to justice. </p>
<p>More generally, young people need to know that they will be treated as capable of remembering the details of their sexual encounters — whether those that feel positive and right, or those that feel wrong or even terrifying.</p>
<p>Young people are constantly working out how to behave in their relationships with each other, and they are concerned about whether and how the law takes them seriously. </p>
<p>At a time when they hear adults around them talk about Christine Blasey Ford and Brett Kavanaugh, they have a lot to contribute to the conversation. And we, as older people, have a lot to listen to and learn.</p><img src="https://counter.theconversation.com/content/104540/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Shauna Van Praagh is a member of two interdisciplinary research teams focused on Childhood Ethics and on Youth Access to Justice, both funded by the Social Sciences and Humanities Council of Canada.</span></em></p>Last week’s hearing with Brett Kavanaugh raised questions about how responsible we are for our youthful actions. A legal scholar says that youthful inexperience doesn’t let us off the hook.Shauna Van Praagh, Professor of Law, McGill UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1002292018-07-19T10:41:06Z2018-07-19T10:41:06ZMGM is suing the victims of the worst mass shooting in US history. Here’s why<figure><img src="https://images.theconversation.com/files/228322/original/file-20180718-142423-18aacnq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The scene in Las Vegas several days after the worst mass shooting in U.S. history.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Gun-Background-Checks-Nevada/b9b5faef764a4af091cf21a4cee294b6/11/0">AP Photo/Gregory Bull</a></span></figcaption></figure><p>Last October, Stephen Paddock unleashed a barrage of automatic gunfire from a 32nd-floor hotel room overlooking a large crowd of concertgoers attending a country music festival in Las Vegas. With a body count of 59 dead and another 500 wounded, it was the <a href="https://www.nytimes.com/2017/10/02/us/las-vegas-shooting.html">worst mass shooting</a> in U.S. history. </p>
<p>Victims of the attack <a href="https://www.nytimes.com/2017/11/21/us/vegas-shooting-lawsuits.html">filed lawsuits last fall</a> against MGM Resorts International, the owner of the hotel and the festival grounds, alleging that the company provided lax security, ignored warning signs that Paddock was stockpiling guns and ammunition in his hotel rooms for days, and failed to respond quickly once the shooting was underway.</p>
<p>On July 13, MGM fired back.</p>
<p>The company <a href="https://www.nytimes.com/2018/07/17/us/mgm-resorts-sues-victims.html">filed a lawsuit in federal court</a> against the victims, seeking a declaration that, under federal law, it is immune from any liability for injuries arising out of the Las Vegas mass shooting. </p>
<p>In <a href="https://scholar.google.com/citations?user=yQUI6yEAAAAJ&hl=en">two decades of writing</a> about litigation arising out of gun violence, I believe that MGM’s legal strategy is unprecedented but not entirely unexpected. If successful, MGM’s lawsuit would fundamentally alter the duties that hotels and concert venues owe to their patrons at a time in our nation’s history when mass shootings have made them especially vulnerable.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/228314/original/file-20180718-142432-6w8at8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/228314/original/file-20180718-142432-6w8at8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/228314/original/file-20180718-142432-6w8at8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/228314/original/file-20180718-142432-6w8at8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/228314/original/file-20180718-142432-6w8at8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/228314/original/file-20180718-142432-6w8at8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/228314/original/file-20180718-142432-6w8at8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">A sign asks for prayers outside of the MGM hotel in Las Vegas.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Las-Vegas-Shooting/fafbf3241e044b7b9415cd10b4266b66/6/0">AP Photo/John Locher</a></span>
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</figure>
<h2>The basis for MGM’s lawsuit</h2>
<p>MGM’s claim of immunity is based on a federal statute called the <a href="https://www.law.cornell.edu/uscode/text/6/chapter-1/subchapter-VIII/part-G">Support Anti-Terrorism by Fostering Effective Technologies Act</a> – known as the SAFETY Act – passed shortly after the Sept. 11, 2001, attacks on the Twin Towers and the Pentagon. </p>
<p>The act limits the liability of companies that develop new technologies or sell services to prevent and respond to terrorist attacks. More importantly for MGM’s purposes, the act makes the customers of such companies entirely immune from liability. These liability provisions apply to any claims arising out of “an act of terrorism.”</p>
<p>To provide security at the Route 91 music festival, MGM hired the <a href="https://csc-usa.com/">Contemporary Services Corporation</a>, a company whose security services have been certified by the secretary of Homeland Security to fall under the provisions of the SAFETY Act, which would render MGM, as a client, immune from liability.</p>
<h2>Why is MGM suing the victims?</h2>
<p><a href="http://cdn.cnn.com/cnn/2018/images/07/17/mgm.complaint.pdf">MGM’s complaint</a> asserts that more than 2,500 individuals have filed or threatened to file lawsuits against the company for injuries – ranging from death to emotional distress –arising from the shooting. </p>
<p>Because MGM’s lawsuit is based on a federal statute, it will be heard in a federal court. The company likely expects a federal judge would be less sympathetic to the victim’s claims than the local state court judges by whom the victims’ lawsuits will be heard. If the federal judge decides in MGM’s favor, that would put an end to the lawsuits in state courts.</p>
<p>MGM’s lawsuit seeks a declaratory judgment that it is immune from liability under the SAFETY Act, which would dispense with all 2,500 potential claims against it in one fell swoop. </p>
<p>The initial public response to MGM’s lawsuit has been <a href="https://www.usatoday.com/story/news/nation/2018/07/17/mgm-resorts-sues-victims-las-vegas-massacre-denies-liability/791511002/">highly critical</a>, but the company is likely betting that reducing its potentially disastrous liability exposure – which could run into hundreds of millions of dollars – is worth any damage to its brand.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/228315/original/file-20180718-142417-sb9q16.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/228315/original/file-20180718-142417-sb9q16.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=388&fit=crop&dpr=1 600w, https://images.theconversation.com/files/228315/original/file-20180718-142417-sb9q16.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=388&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/228315/original/file-20180718-142417-sb9q16.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=388&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/228315/original/file-20180718-142417-sb9q16.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=488&fit=crop&dpr=1 754w, https://images.theconversation.com/files/228315/original/file-20180718-142417-sb9q16.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=488&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/228315/original/file-20180718-142417-sb9q16.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=488&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">People carry flowers as they walk near the Mandalay Bay hotel and casino during a vigil for victims and survivors of the mass shooting in Las Vegas.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Las-Vegas-Shooting/51db84d4431e4459914f110d41609c98/3/0">AP Photo/John Locher, File</a></span>
</figcaption>
</figure>
<h2>MGM’s odds of success</h2>
<p>To obtain immunity under the SAFETY Act, MGM will have to convince the court that the Las Vegas mass shooting was an act of terrorism, which <a href="https://www.law.cornell.edu/uscode/text/6/444#2_A">the law</a> defines as an illegal act that “uses or attempts to use instrumentalities, weapons or other methods designed or intended to cause mass destruction.” Just how the court will decide that issue remains unclear.</p>
<p><a href="https://www.nytimes.com/2018/07/17/us/mgm-resorts-sues-victims.html">According to MGM’s own lawyer</a>, this is the first litigation invoking the act, and no court has yet interpreted the provisions of the act.</p>
<p>Gun sellers and retailers are already immune from such lawsuits arising out of the criminal misuse of the weapons that they sell under the 2005 Protection of Lawful Commerce in Arms Act. </p>
<p>If successful, MGM’s lawsuit would extend similar protection to the hotels, concert halls, fairgrounds, schools and other venues currently responsible under the law for taking reasonable measures to protect the public. MGM’s denial of any responsibility for public safety on its property represents a new strategy by public accommodations for responding to mass shootings: run for the exits.</p><img src="https://counter.theconversation.com/content/100229/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Timothy D. Lytton has provided expert consulting services to law firms representing gun violence victims</span></em></p>The hotel company filed an unprecedented lawsuit against the victims of the mass shooting in Las Vegas last October, arguing it has immunity from liability under federal law.Timothy D. Lytton, Distinguished University Professor & Professor of Law, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/910402018-04-03T10:44:49Z2018-04-03T10:44:49ZIt’s not my fault, my brain implant made me do it<figure><img src="https://images.theconversation.com/files/212717/original/file-20180329-189810-cbug78.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Probes that can transmit electricity inside the skull raise questions about personal autonomy and responsibility.</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Tiefe_Hirnstimulation_-_Sonden_RoeSchaedel_seitl.jpg">Hellerhoff</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p><a href="https://www.theguardian.com/music/2014/may/27/johnny-cash-deep-brain-stimulation-urge-listen">Mr. B loves Johnny Cash</a>, except when he doesn’t. Mr. X has <a href="http://www.sciencemag.org/news/2014/04/scienceshot-deep-brain-stimulation-triggers-hallucinations">watched his doctors morph into Italian chefs</a> right before his eyes.</p>
<p>The link between the two? Both Mr. B and Mr. X received deep brain stimulation (<a href="https://doi.org/10.1038/507290a">DBS</a>), a procedure involving an implant that sends electric impulses to specific targets in the brain to alter neural activity. While brain implants aim to <a href="https://doi.org/10.1038/nature.2017.23031">treat neural dysfunction</a>, cases like these demonstrate that they may influence an individual’s perception of the world and behavior in undesired ways. </p>
<p>Mr. B received DBS as treatment for his severe obsessive compulsive disorder. He’d never been a music lover until, <a href="https://doi.org/10.3389/fnbeh.2014.00152">under DBS</a>, he developed a distinct and entirely new music preference for Johnny Cash. When the device was turned off, the preference disappeared. </p>
<p>Mr. X, an epilepsy patient, received DBS as part of an investigation to locate the origin of his seizures. During DBS, he hallucinated that doctors became chefs with aprons before the stimulation ended and the scene faded. </p>
<p>In both of these real-world cases, DBS clearly triggered the changed perception. And that introduces a host of thorny questions. As neurotechnologies like this become more common, the behaviors of people with DBS and other kinds of brain implants might challenge current societal views on responsibility.</p>
<p>Lawyers, philosophers and ethicists have labored to define the conditions under which individuals are to be judged legally and morally responsible for their actions. The brain is generally regarded as the center of control, rational thinking and emotion – it orchestrates people’s actions and behaviors. As such, the brain is key to agency, autonomy and responsibility. </p>
<p>Where does responsibility lie if a person acts under the influence of their brain implant? As <a href="http://www.bioethics.msu.edu/73-people/300-cabrera">a neuroethicist</a> and <a href="http://www.law.msu.edu/faculty_staff/profile.php?prof=723">a legal expert</a>, we suggest that society should start grappling with these questions now, before they must be decided in a court of law. </p>
<h2>Who’s to blame if something goes wrong?</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/212719/original/file-20180329-189824-17tsjlv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/212719/original/file-20180329-189824-17tsjlv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/212719/original/file-20180329-189824-17tsjlv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/212719/original/file-20180329-189824-17tsjlv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/212719/original/file-20180329-189824-17tsjlv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/212719/original/file-20180329-189824-17tsjlv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/212719/original/file-20180329-189824-17tsjlv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/212719/original/file-20180329-189824-17tsjlv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">An uncontrollable urge to aim right for them?</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/fabiovenni/2065036619">Fabio Venni</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
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</figure>
<p>Imagine that Ms. Q was driving one day and had a sudden urge to swerve into a crowded bus stop. As a result, she ended up injuring several people and damaging the bus stop. During their investigation, police found that Ms. Q had a brain implant to treat her Parkinson’s disease. This implant malfunctioned at the time the urge occurred. Furthermore, Ms. Q claims that the bus stop was not there when she acted on the impulse to swerve.</p>
<p>As brain stimulating technology advances, a hypothetical case like Ms. Q’s raises questions about moral and legal responsibility. Is Ms. Q solely responsible for her actions? Can we attribute any blame to the device? What about to the engineers who designed it or the manufacturer? The neurosurgeon who implanted it or the neurologist who programmed the device parameters?</p>
<p>Historically, moral and legal responsibility have largely focused on the autonomous individual – that is, someone with the capacity to deliberate or act on the basis of one’s own desires and plans, free of distorting external forces. However, with modern technological advances, many hands may be involved in the operation of these brain implants, <a href="https://doi.org/10.1038/nature.2017.23031">including artificial intelligence programs directly influencing the brain</a>. </p>
<p>This external influence raises questions about the degree to which someone with an implant can control their actions and behaviors. If brain implants influence someone’s decisions and behaviors, do they undermine the person’s autonomy? If autonomy is undermined, can we attribute responsibility to the individual? </p>
<p>Society needs to discuss what happens when science and technology start challenging those long-held assumptions.</p>
<h2>So many shades of gray</h2>
<p>There are different legal distinctions concerning responsibility, such as causal responsibility and liability responsibility.</p>
<p>Using this distinction, one may say that the implant is causally responsible, but that Ms. Q still has liability for her actions. One might be tempted to split the liability in this way because Ms. Q still acted on the urge – especially if she knew the risk of brain implant side effects. Perhaps Ms. Q still bears all primary responsibility but the influence of the implant should mitigate some of her punishment.</p>
<p>These are important gradations to reckon with, because the way we as a society divide liability may force patients to choose between potential criminal liability and treating a debilitating brain condition.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/212718/original/file-20180329-189830-pslzsp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/212718/original/file-20180329-189830-pslzsp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/212718/original/file-20180329-189830-pslzsp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/212718/original/file-20180329-189830-pslzsp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/212718/original/file-20180329-189830-pslzsp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/212718/original/file-20180329-189830-pslzsp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/212718/original/file-20180329-189830-pslzsp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/212718/original/file-20180329-189830-pslzsp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Would the surgeon bear some responsibility? Or the device manufacturer?</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/File:Peds_DBS.jpg">Allurimd (talk)</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>Questions also arise about product liability for companies, professional responsibility issues for researchers and technology developers, and medical malpractice for the health professionals who placed and programmed the device. Even if multiple actors share responsibility, the question regarding how to distribute responsibility among multiple actors still remains. </p>
<p>Adding an additional layer is the potential for malicious interference of these implants by criminals. Newer implants may have <a href="https://www.scientificamerican.com/article/wireless-brain-implant-allows-ldquo-locked-in-rdquo-woman-to-communicate/">wireless connectivity</a>. Hackers could attack such implants to use Ms. Q for their own (possibly nefarious) purposes, posing more challenges to questions of responsibility. </p>
<p>Insulin pumps and implantable cardiac defibrillators have already been hacked in real life. While there have not been any reports of malicious interference with brain implants, their increasing adoption brings greater opportunity for tech-savvy individuals <a href="https://doi.org/10.1016/j.wneu.2016.05.010">to potentially use the technology for evil</a>.</p>
<p>Considering the impact brain implants can have on moral and legal notions of responsibility, it’s time to discuss whether and when brain interventions should excuse people. New technologies often require some modification or extension of existing legal mechanisms. For example, assisted reproductive technologies have required society to <a href="https://www.uscis.gov/news/uscis-expands-definition-mother-and-parent-include-gestational-mothers-using-assisted-reproductive-technology-art">redefine what it means to be a “parent.”</a></p>
<p>It’s possible that soon we will start hearing in courtrooms: “It’s not my fault. My brain implant made me do it.”</p><img src="https://counter.theconversation.com/content/91040/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Where does responsibility lie if a person acts under the influence of their brain implant? As neurotechnologies advance, a neuroethicist and a legal expert write that now’s the time to hash it out.Laura Y. Cabrera, Assistant Professor of Neuroethics, Michigan State UniversityJennifer Carter-Johnson, Associate Professor of Law, Michigan State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/938452018-03-28T18:56:20Z2018-03-28T18:56:20ZWith China’s space station about to crash land, who’s responsible if you get hit by space junk?<figure><img src="https://images.theconversation.com/files/212370/original/file-20180328-109175-fyiu6k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">An artist's impression of Tiangong-1 in orbit.</span> <span class="attribution"><a class="source" href="http://www.aerospace.org/cords/media-kit/">Aerospace Corporation</a></span></figcaption></figure><p>The defunct Chinese space station Tiangong-1 is falling back to Earth and about to crash land some time over the next few days. Most experts <a href="http://blogs.esa.int/rocketscience/2018/03/26/tiangong-1-frequently-asked-questions-2/">expect much of it to burn up</a> as it enters the atmosphere, but it is likely that some pieces of the 8.5-tonne station will survive re-entry.</p>
<p>While the <a href="http://aerospace.wpengine.netdna-cdn.com/wp-content/uploads/2018/03/COL002.0318_TIAN.pdf">odds of the debris falling on a person are small</a>, you may ask: who is liable in the event of damage caused by a space object to a person or property?</p>
<p>Under international law, a State is liable for damage caused by its “space objects” to another State or its space objects. Liability arises under the provisions of the <a href="http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html">Outer Space Treaty</a>, which deals both with State responsibility for activities in outer space and the attribution of liability where damage has been caused by a space object.</p>
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Read more:
<a href="https://theconversation.com/chinas-falling-space-station-highlights-the-problem-of-space-junk-crashing-to-earth-93295">China’s falling space station highlights the problem of space junk crashing to Earth</a>
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<p>The Outer Space Treaty is an international agreement, which came into force in October 1967, has more than 100 member countries, including Australia and perhaps more importantly China.</p>
<h2>Rules and liability</h2>
<p>The Treaty provides the basic rules of use of outer space by nation States. It requires them to carry on activities in the exploration and use of outer space, in accordance with international law and in the interest of promoting international co-operation and understanding.</p>
<p>States who are parties to that Treaty “shall bear international responsibility for national activities in outer space” regardless of whether those activities are undertaken by or on behalf of the government or by non-government entities.</p>
<p>This is important as it imposes liability on States who are party to the Treaty, rather than the corporations or entities who are launching or operating the space object.</p>
<p>In other words, national governments are responsible to the international community for activities undertaken with respect to space activities by their nationals, whether the launch occurs from that State or not. They are also responsible for launches from their territory by foreign entities. </p>
<p>That means Australia is still responsible for the <a href="https://theconversation.com/australias-back-in-the-satellite-business-with-a-new-launch-76090">Australian-built satellites launched last year</a> even though they were launched from Cape Canaveral, in the US.</p>
<p>States will be liable for damage to another State who is party to the Outer Space Treaty caused by the space object or its parts, on Earth and in air and outer space. This includes damage to people, property and corporations.</p>
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<figcaption><span class="caption">Thankfully Europe’s space freighter ATV Jules Verne burned up over an uninhabited area of the Pacific Ocean at the end of its mission.</span></figcaption>
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<h2>Damages and compensation</h2>
<p>No guidance is given under the Treaty regarding how liability for the damage is to be calculated. But a further treaty, called the <a href="http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introliability-convention.html">Liability Convention</a>, provides some further guidance. </p>
<p>The Liability Convention <a href="http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/liability-convention.html">provides in Article II</a> that a “launching state” will be:</p>
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<p>(…) absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight.</p>
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<p>This high standard of absolute liability reflects what were perceived by the drafters of the treaty as particularly vulnerable parties. People and property on Earth and aircraft in flight cannot avoid or reduce their potential harm from space from catastrophic launch failure or space debris.</p>
<p>But where damage is caused other than on the surface of the Earth or aircraft in flight the principle of fault is applied. The Convention does not elaborate on how fault is to be determined. </p>
<p>On Earth we are used to applying principles of negligence to accidents involving people or property. Negligence considers issues such as the potential of harm occurring, the foreseeability of that harm and whether sufficient measures were taken to reduce or avoid that harm.</p>
<p>It is not clear if these sorts of calculations exist with respect to space. </p>
<p>What is clear is that the Convention is intended to be “victim-oriented”. Claims for damage may relate to any harm caused by the space object including direct and indirect harm. </p>
<p><a href="http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/liability-convention.html">Article XII says</a> compensation is to be determined on the basis that it should restore the person:</p>
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<p>(…) to the condition which would have existed if the damage had not occurred.</p>
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<h2>But it wasn’t our fault</h2>
<p>What about where objects collide in space causing harm to a third party? In this case liability may be shared by the launching States of the colliding space objects, again in accordance with their respective fault, where the damage is in space, absolutely if the damage is on Earth or an aircraft in flight.</p>
<p>Some exceptions exist where the State making the claim with respect to harm is actually responsible for that harm, through its own gross negligence or an intention to cause harm.</p>
<p>There has only been one claim made under the Liability Convention. The Government of Canada made a CA$6 million claim for compensation to the Soviet Union after its Cosmos 954, a nuclear powered satellite, <a href="http://www.rcinet.ca/en/2017/01/24/canada-history-jan-24-1978-soviet-radiation-across-the-arctic/">crashed in Northern Canada on January 24, 1978</a>.</p>
<p>While the final, diplomatically negotiated settlement of CA$3 million, did not specifically mention the Liability Convention, it is generally considered that the settlement was negotiated in the context of the Convention. Those costs related to clean up of the contaminated site in such a remote area.</p>
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Read more:
<a href="https://theconversation.com/step-up-australia-we-need-a-traffic-cop-in-space-86464">Step up Australia, we need a traffic cop in space</a>
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<p>In 1979 debris from NASA’s Skylab fell to Earth in Western Australia. NASA advertised for claims with respect to damage caused by the debris, but no State-based claims were formally made under the Liability Convention.</p>
<p>There were some claims regarding illegal dumping: the local Shire of Esperance <a href="https://www.esperanceexpress.com.au/story/4787047/the-day-skylab-landed-in-esperance/">issued NASA with a A$400 littering fine</a>. It was eventually paid in 2003 by a US radio presenter and his listeners who raised the funds.</p>
<p>Tiangong-1 was China’s first attempt at a space station. It was <a href="https://www.youtube.com/watch?v=UIcL9aXpOYE">launched aboard a Long March 2F/G rocket from the Jiuquan Satellite Launch Center</a> on September 30, 2011, so it is China’s responsibility.</p>
<p>In the unlikely event that a piece of the Tiangong-1 falls on an Australian, the Australian government would need to pursue a claim with respect to any injury the person suffered against the Chinese government. Such a claim could take many years through diplomatic channels.</p>
<p>Unfortunately, an individual cannot make a claim on his or her own behalf. </p>
<p>I therefore suggest that before you get hit by a piece of space junk, you check your health insurance!</p><img src="https://counter.theconversation.com/content/93845/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Melissa de Zwart is a member of the Advisory Council of the Space Industry Association of Australia.</span></em></p>China’s space station Tiangong-1 is about to crash back to Earth any day now. It’s out of control too so no one really knows where it will land. So what if it hits you or your house?Melissa de Zwart, Professor, Adelaide Law School, University of AdelaideLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/752942017-04-06T04:51:47Z2017-04-06T04:51:47ZDriverless cars might be safer but they’ll still keep the courts busy<p>If driverless cars live up to the safety hype, they could result in a significant reduction in the number of court cases dealing with human-related traffic offences.</p>
<p>But before we can clear the courts, we will need to have a period where human drivers share the responsibility (both actual and legal) for control of their vehicles.</p>
<p>Arriving at the point where fully automated vehicles are on our roads requires us to establish who is legally in control of them. If we don’t, we could find that we have simply replaced one type of legal dispute with another.</p>
<h2>Traffic offences</h2>
<p>More than 200,000 people in Australia were found guilty of driving and traffic offences in the 12 months to June last year, according to <a href="http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4513.0%7E2015-16%7EMain%20Features%7EDefendants%20proven%20guilty%7E5">Australian Bureau of Statistics figures</a>.</p>
<p>The most common crimes were driving while intoxicated (71,501 cases) and speeding (16,461 cases). Other offences included failing to obey traffic signs and signals, and careless driving.</p>
<p>In some parts of Australia these <a href="http://www.abs.gov.au/ausstats/abs@.nsf/mf/4513.0">offences are increasing in frequency</a>, placing a growing burden on our courts. All because of wrongdoing or careless conduct of a human in charge of a motor vehicle.</p>
<p>By contrast, fully automated vehicles have established an impressive compliance and safety record, so far.</p>
<p>There have been very few reported crashes, although they obviously cause concern when they occur, such as the crash last year that led to the death of the driver of a <a href="https://www.theguardian.com/technology/2016/jun/30/tesla-autopilot-death-self-driving-car-elon-musk">Tesla car in autopilot mode</a>.</p>
<p>Most crashes involving autonomous vehicles are less serious than that, and are due to the errors of other (human) drivers, such as <a href="http://www.reuters.com/article/us-uber-tech-crash-idUSKBN16Y1WB">last month’s Uber collision in Arizona</a> and the 16 crashes <a href="https://www.nytimes.com/2015/09/02/technology/personaltech/google-says-its-not-the-driverless-cars-fault-its-other-drivers.html">reported by Google</a> between 2009 and 2015. Google’s cars have been involved in further accidents, including one last February when its <a href="https://www.wired.com/2016/02/googles-self-driving-car-may-caused-first-crash/">autonomous Lexus pulled out into a bus</a>.</p>
<p>The safety record of autonomous vehicles is frequently contrasted with research that identifies that more than 90% of regular vehicle collisions are <a href="https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/811059">caused by human error</a>.</p>
<p>As the number of fully automated cars on our roads increases, we should expect to see a reduction in the number of traffic offences coming before our courts. In Victoria alone these offences currently account for nearly <a href="https://www.magistratescourt.vic.gov.au/sites/default/files/Default/151130%20AR%202014-15%20%28PDF%20final%29.pdf">21,000 cases heard each year</a> in the Magistrates’ Court.</p>
<h2>Drivers, passengers and ‘chaperones’</h2>
<p>The removal of the human driver has the potential to make some criminal charges unnecessary. This could include charges of driving while intoxicated, unlicensed driving, and driving with a disqualified, suspended or cancelled licence.</p>
<p>Making these offences redundant in Victoria, for example, would remove about <a href="https://www.magistratescourt.vic.gov.au/sites/default/files/Default/151130%20AR%202014-15%20%28PDF%20final%29.pdf">29,000 cases annually</a> from the Magistrates’ Court.</p>
<p>But reform may be necessary to clarify the legal situation. In Victoria the definition of “drives” in the <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/rsa1986125/s49.html%5D">Road Safety Act 1986</a> includes “<a href="http://www5.austlii.edu.au/au/legis/vic/consol_act/rsa1986125/s3.html">to be in control of a vehicle</a>”. Drink and drug driving offences refer to a person who “<a href="http://www.austlii.edu.au/au/legis/vic/consol_act/rsa1986125/s49.html">drives … or is in charge of a motor vehicle</a>”.</p>
<p>Would a person who enters a fully automated car that unlocks as they approach it, who gives verbal directions as to their destination (and leaves it to the car to determine the route), be said to be in control or in charge of the car?</p>
<p>If that person is not in control of the car, then who is? And what if the vehicle in question is an Uber vehicle, taxi or bus? Who is responsible for the actions of that vehicle – the hirer, the owner or the manufacturer?</p>
<p>It is interesting to note that the staff member present in Curtin University’s <a href="http://research.curtin.edu.au/institutes-centres/driverless-bus/">recently introduced fully automated bus</a> is referred to as a “chaperone”.</p>
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<figcaption><span class="caption">Curtin University is trialling an electric driverless bus that seats 11 passengers.</span></figcaption>
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<p>In essence, a key legal issue will be to determine whether a person present in a fully automated car is more like a driver or a passenger.</p>
<p>Tesla’s chief executive <a href="https://www.businessinsider.com.au/elon-musk-tesla-liable-driverless-car-crashes-2016-10">Elon Musk said</a> his company will accept liability for fully automated vehicles where a problem stems from a design fault. But he also suggested that in other circumstances, individuals and their insurers may be responsible.</p>
<p>Some clarification of the legal position may be required. A <a href="https://www.gov.uk/government/publications/driverless-cars-in-the-uk-a-regulatory-review">report</a>, released by the UK government’s Department for Transport in February 2015, warned that with fully automated vehicles:</p>
<blockquote>
<p>[…] it does not seem reasonable to suggest that the human driver is still responsible for the manner in which the vehicle drives since they may not even be aware of the road environment or the presence of other road users.</p>
</blockquote>
<h2>The transition phase: semi-automated vehicles</h2>
<p>While fully automated vehicles are not yet freely driving on Australian roads (the Curtain bus is restricted to a specified route), many Australian drivers already use cruise control, electronic stability control, parking assist and advanced braking systems to help them drive their cars. </p>
<p>Human drivers can override these automatic settings at any time, and may be required to do so to avoid colliding with cyclists, pedestrians, animals and stationary vehicles – all of which may not be detected by the automated programs. </p>
<p>Consequently, manufacturers warn drivers of semi-automated vehicles that they must remain alert and ready to resume control in the case of adverse environmental conditions or unexpected events. </p>
<p>Because of this shared responsibility for control of the vehicle, we might expect legal problems in attributing responsibility when something goes wrong. Fault could rest with a human driver who fails to take control when required to do so, or with a manufacturer whose product is faulty.</p>
<p>While some car manufacturers – such as <a href="http://support.volvocars.com/uk/cars/Pages/owners-manual.aspx?mc=v526&my=2016&sw=15w46&article=548956727ac6edfbc0a80151522a4edc">Volvo with its Pilot assist</a> – say that drivers bear responsibility for controlling the car even when the semi-automated program is used, the situation might be more complex. </p>
<p>It may be that the semi-automated program itself causes the problem. <a href="http://uk.reuters.com/article/us-gm-selfdriving-idUKKBN13N2CY">News reports from the US</a> say that federal authorities have already expressed concern that a safety device on a semi-automated car may itself cause accidents. In these situations it may not be so easy for manufacturers to escape liability.</p><img src="https://counter.theconversation.com/content/75294/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Marilyn McMahon does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Driverless cars may cut the number of traffic offences but they could open up a whole new area of litigation - who’s responsible for any crash?Marilyn McMahon, Associate Professor in Law, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/561672016-03-11T17:10:46Z2016-03-11T17:10:46ZFive years after Fukushima, there are big lessons for nuclear disaster liability<p>As four reactors at the Fukushima Daiichi Nuclear Power plant suffered <a href="http://fukushimaontheglobe.com/the-earthquake-and-the-nuclear-accident/whats-happened">catastrophic cooling failures</a> and exploded in March 2011, the world watched in disbelief. For Japan, this was not just the greatest nuclear disaster since <a href="http://news.bbc.co.uk/1/shared/spl/hi/guides/456900/456957/html/nn1page1.stm">Chernobyl</a>. <a href="http://www.bbc.co.uk/news/world-asia-pacific-12726297">It was</a> “the most severe crisis … since World War II.” </p>
<p>Five years on, the nation continues to struggle with the effects. Towns <a href="http://www.meti.go.jp/english/earthquake/nuclear/roadmap/pdf/141001MapOfAreas.pdf">up to 40km</a> from the plant remain a dead-zone: desolate and uninhabited. As many as 100,000 people <a href="http://www.cbc.ca/news/world/fukushima-nahara-japan-reopens-1.3217085">still remain displaced</a>, unable to return to their homes. Workers at the <a href="http://www.tepco.co.jp/en/index-e.html">Tokyo Electric Power Company (TEPCO)</a> still don claustrophobic masks and rubber suits to venture into the Fukushima facility. Their job is to decommission the plant safely, a task that plant manager Akira Ono <a href="http://www.sciencemag.org/news/2016/03/five-years-after-meltdown-it-safe-live-near-fukushima">recently said</a> was “about 10% complete”.</p>
<p>The task is beset with setbacks and spiralling costs. In December 2011 the government estimated that managing Fukushima would cost US$50 billion. By 2014 this <a href="http://www.japantimes.co.jp/news/2014/08/27/national/fukushima-nuclear-crisis-estimated-to-cost-%C2%A511-trillion-study/#.VuINr5OLSb8">had nearly doubled</a> to include US$19 billion to decommission the Fukushima plant; US$22 billion to decontaminate the surrounding area; US$9 billion to build temporary storage facilities for nuclear waste; and US$43 billion to compensate the victims. Today even this looks <a href="http://www.theguardian.com/environment/2016/mar/11/fukushima-daiichi-nuclear-reactors-decommission-cleanup-japan-tsunami-meltdown">hopelessly optimistic</a>. </p>
<h2>Compensation</h2>
<p>Fukushima <a href="http://talks.cam.ac.uk/talk/index/50572">is now</a> the biggest civil liability case in history. More than two million people have sued TEPCO and US$50 billion has <a href="http://talks.cam.ac.uk/talk/index/50572">already been</a> paid out. This is already equivalent to 49 <a href="http://thinkprogress.org/climate/2013/07/15/2301451/25-years-after-exxon-valdez-oil-spill-company-still-hasnt-paid-for-long-term-environmental-damages/">Exxon Valdez</a> oil spill settlements, and experts <a href="http://www.law.cam.ac.uk/press/events/2015/11/expert-workshop-fukushima-five-years-legal-fallout-japan-lessons-eu">predict</a> the total cost of compensation could rise to US$120 billion. </p>
<p>One notable subplot has been compensation for cases of suicide. A court’s <a href="http://www.theguardian.com/environment/2014/aug/26/fukushima-suicide-victim-family-damages-tepco-hamako-watanabe">landmark decision</a> that TEPCO pay US$470,000 to the heirs of a 58-year-old farmer’s wife named Hamako Watanabe could prove much more costly. The Watanabe family were evacuated from the village of Yamakiya in April 2011, losing their farm and leaving them with a US$140,000 mortgage on their now uninhabitable home. Watanabe became severely depressed and during an authorised one-night visit to their home in June the same year, she burned herself to death. </p>
<p>Other bereaved families have also come forward. Two similar cases are now underway, and the Japanese government <a href="http://www.fukushimawatch.com/2015-09-01-fukushima-disaster-sparks-rise-in-suicide-and-spontaneous-abortion-rates.html">anticipates that</a> as many as 56 suicides could be tied to the disaster. And this looks conservative: the NHK broadcasting service <a href="https://www.washingtonpost.com/world/in-a-first-japanese-court-rules-that-nuclear-plant-operator-is-liable-for-suicide/2014/08/26/bc43af62-6c30-4e70-8e22-ffe1895727c1_story.html">has put</a> the number at 130. What is certain is that the number is rising. A further 19 evacuees <a href="http://ajw.asahi.com/article/0311disaster/fukushima/AJ201512280026">took their lives</a> in 2015 and there is no reason to believe 2016 will be any different. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/114839/original/image-20160311-11285-1y1p393.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/114839/original/image-20160311-11285-1y1p393.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/114839/original/image-20160311-11285-1y1p393.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=434&fit=crop&dpr=1 600w, https://images.theconversation.com/files/114839/original/image-20160311-11285-1y1p393.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=434&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/114839/original/image-20160311-11285-1y1p393.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=434&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/114839/original/image-20160311-11285-1y1p393.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=546&fit=crop&dpr=1 754w, https://images.theconversation.com/files/114839/original/image-20160311-11285-1y1p393.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=546&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/114839/original/image-20160311-11285-1y1p393.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=546&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Anti-nuclear demonstration in Nagatacho, 2015.</span>
<span class="attribution"><a class="source" href="http://www.shutterstock.com/cat.mhtml?lang=en&language=en&ref_site=photo&search_source=search_form&version=llv1&anyorall=all&safesearch=1&use_local_boost=1&autocomplete_id=&searchterm=fukushima&show_color_wheel=1&orient=&commercial_ok=&media_type=images&search_cat=&searchtermx=&photographer_name=&people_gender=&people_age=&people_ethnicity=&people_number=&color=&page=1&inline=284080646">TK Kurikawa</a></span>
</figcaption>
</figure>
<h2>Who pays</h2>
<p>Officially the buck for everything stops with TEPCO. Under <a href="http://www.oecd-nea.org/law/legislation/japan-docs/Japan-Nuclear-Damage-Compensation-Act.pdf">Japanese nuclear-liability law</a>, the nuclear operator is responsible for the full cost of an accident, even if it is not proven to be negligent.</p>
<p>In practice, the Japanese taxpayer <a href="http://www.ft.com/cms/s/97c88560-e05b-11e5-8d9b-e88a2a889797,Authorised=false.html?siteedition=uk&_i_location=http%3A%2F%2Fwww.ft.com%2Fcms%2Fs%2F0%2F97c88560-e05b-11e5-8d9b-e88a2a889797.html%3Fsiteedition%3Duk&_i_referer=&classification=conditional_standard&iab=barrier-app#axzz42otjbPkG">is bearing</a> most of the burden. TEPCO’s liability may be unlimited, but its assets are not. Despite the country’s <a href="http://www.livescience.com/30312-japan-earthquakes-top-10-110408.html">seismic history</a>, TEPCO’s private insurance policy did not cover earthquakes or tsunamis. And in accordance with <a href="http://www.oecd-nea.org/law/legislation/japan-docs/Japan-Nuclear-Damage-Compensation-Act.pdf">regulations introduced</a> in 2009, TEPCO was insured through private policies and state indemnities for up to only US$1.1 billion: about a fiftieth of the damages paid out so far. </p>
<p>The government has been forced to prevent TEPCO’s bankruptcy – over and above all of its other Fukushima-related outgoings. It <a href="http://www.economist.com/blogs/schumpeter/2012/05/tepco%E2%80%99s-nationalisation">has bought</a> a majority share and has continued to finance compensation payments through a <a href="https://www.oecd-nea.org/law/fukushima/7089-fukushima-compensation-system-pp.pdf">series of</a> indemnity agreements and loans in the form of government compensation bonds. The state <a href="http://link.springer.com/chapter/10.1007/978-3-642-39768-4_5">has also</a> enacted retroactive legal guidelines that obligate other power companies and financial institutions to contribute to the compensation effort. </p>
<p>One has to ask whether the concept of unlimited liability has any real meaning when the operator’s capacity to pay is so limited. It also raises questions for <a href="http://www.law.cam.ac.uk/press/events/2015/11/expert-workshop-fukushima-five-years-legal-fallout-japan-lessons-eu">other parts</a> of the world. In the UK, for example, nuclear liability is <a href="http://www.world-nuclear-news.org/NP_UK_consults_on_nuclear_liability.html">capped at</a> a mere US$220m, less than two hundredths of what TEPCO has already paid in compensation claims. Japan is evidently not the only country that should be taking lessons from Fukushima.</p>
<p><em>The article originally said that the TEPCO payouts to date are 400 times that of Exxon Valdez, as opposed to 49. It also said that the dead zone around the plant was 10km, but now says 40km.</em></p><img src="https://counter.theconversation.com/content/56167/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Makoto Takahashi receives funding from the ESRC. </span></em></p>The nuclear operator was nowhere near adequately covered for the disaster. And it’s not just a Japanese problem.Makoto Takahashi, Pre-doctoral researcher, University of CambridgeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/519502015-12-09T11:09:16Z2015-12-09T11:09:16ZIt’s time to repeal the gun industry’s exceptional legal immunity<p>Gun violence has been a problem for a long time, but the recent shootings in Paris and San Bernardino have focused new attention on the issue. </p>
<p>Americans no longer just worry about someone <a href="https://theconversation.com/six-things-americans-should-know-about-mass-shootings-48934">shooting</a> up a school or workplace for personal reasons. The threat of terrorism has added an alarming new dimension to the problem.</p>
<p>Coming up with effective and realistic solutions is not easy. Guns pose a tricky dilemma, because they can be used to do good or bad things. They can be used to commit heinous crimes, but they can be used to protect lives as well. </p>
<p>The <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1342636">challenge for lawmakers</a> is to come up with ways to reduce the risk of criminal misuse of guns while preserving and even promoting the likelihood of guns being used in beneficial ways.</p>
<p>Ensuring that every firearm manufacturer and dealer operates as safely and responsibly as possible should be one piece of the puzzle. </p>
<p>A key way to ensure that gun companies have the right incentives would be to repeal the <a href="https://www.congress.gov/109/plaws/publ92/PLAW-109publ92.pdf">Protection of Lawful Commerce in Arms Act</a>. </p>
<h2>Gunmakers’ special immunity</h2>
<p>Enacted in 2005, this federal law gave gun sellers a special immunity from legal responsibilities that is not enjoyed by any other industry.</p>
<p>This law was enacted because a wave of lawsuits had put unprecedented pressure on the gun industry. In 1998, New Orleans became the first city to file a lawsuit against gun manufacturers. More than 30 other major American cities and counties soon followed. Other cases brought by individual victims of shootings began working their way through the courts as well.</p>
<p>As one of the lawyers at the Brady Center to Prevent Gun Violence helping to bring these cases, I saw very clearly the impact that they had. The lawsuits generated <a href="http://www.bradycampaign.org/resources/smoking-guns">evidence</a> of severe problems with distribution of guns, including undercover sting operations revealing how gun dealers knowingly allow people to make “straw purchases” on behalf of convicted felons who cannot pass a background check.</p>
<p>The lawsuits also changed perceptions about the issue. Rather than seeing gun violence simply as a crime issue, the press and public began focusing for the first time on specific ways in which the gun industry’s practices contribute to the danger. </p>
<p>Journalists wrote a <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1161206">flood of stories</a> about topics like how gun companies boosted the lethality of their products to boost sales, how new technologies could make guns “personalized” to prevent unauthorized use and what government data showed about the illegal market for guns. </p>
<p>The lawsuits put enormous pressure on the gun industry to either reform its practices or face serious potential liability. From the industry’s perspective, that meant the lawsuits were a <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1161206">major threat</a>. Rather than doing the right thing and cleaning up its act, the industry turned to Congress for relief. The Protection of Lawful Commerce in Arms Act knocked out almost all of the litigation pending against gunmakers at the time.</p>
<h2>Regrets about immunity in California</h2>
<p>If Congress decided to do away with this law, it would not be the first legislature that came to regret bestowing special immunity on gunmakers. California enacted a gun industry immunity law in 1983. Ten years later, a deranged gunman killed eight people and wounded six others in a <a href="http://www.nytimes.com/1993/07/03/us/the-broker-who-killed-8-gunman-s-motives-a-puzzle.html">shooting rampage</a> at the office of a San Francisco law firm. </p>
<p>The killer used a pair of TEC-9 assault pistols, weapons with a <a href="http://www.cpmlegal.com/news-publications-Assault_Weapons_The_Case_Against_The_TEC_9.html">notorious reputation</a> for being designed and marketed in ways that appealed to criminals. </p>
<p>Survivors of the shooting and families of the victims brought a lawsuit against the manufacturer of the TEC-9s. They had compelling evidence of negligence but never got their day in court in front of a jury because <a href="http://law.justia.com/cases/california/supreme-court/4th/26/465.html">judges ruled</a> that the manufacturer was immune from liability under California’s statute. </p>
<p>Legislators in California were appalled and soon repealed the law, replacing it with a <a href="http://codes.findlaw.com/ca/civil-code/civ-sect-1714.html">measure</a> simply stating that those who design, distribute and market firearms have no special exemption from the normal legal duty to exercise ordinary care. California’s decision unfortunately became a moot point a few years later when Congress gave sweeping immunity to the gun industry on a nationwide basis.</p>
<h2>A compelling case</h2>
<p>The federal measure effectively bars almost any lawsuit against a gun manufacturer or wholesale distributor for failing to take <a href="https://theconversation.com/milwaukee-case-could-encourage-gun-stores-to-reduce-illegal-sales-49277">reasonable steps</a> to reduce the risk of criminal misuse of its products, such as exercising greater oversight of the retail dealers through which guns are sold. </p>
<p>It also bars a wide range of claims against retail sellers of firearms, leaving only a few narrow exceptions such as for certain types of claims based on statutory violations. For example, a gun dealer can be sued for knowingly selling a gun to a convicted felon or other legally disqualified purchaser. But if a dealer takes an “I know nothing” attitude and recklessly disregards circumstances that ought to raise reasonable suspicions or concerns about selling the gun, the dealer can invoke the federal immunity statute to avoid liability. </p>
<p>A <a href="http://www.bradycampaign.org/press-room/brady-center-lawsuit-targets-missouri-gun-dealer-for-gun-sale-to-mentally-ill-woman-who">case</a> currently before the Supreme Court of Missouri provides a disturbing example of the federal law’s consequences. </p>
<p>Colby Sue Weathers had a long history of severe mental illness and substance abuse. She heard voices in her head and believed she was being monitored by a computer chip implanted inside her nose. She walked into a gun shop in May 2012, and, despite her debilitated mental condition, she managed to purchase a pistol. </p>
<p>She planned to shoot herself with it, but changed her mind and surrendered the gun to her parents. A few weeks later, Colby’s mother called the gun shop, told them about Colby’s mental problems and begged them not to sell another gun to Colby. She specifically warned the store that Colby would soon be receiving a Social Security check and was likely to use the money to buy another gun. </p>
<p>The shop could have simply declined to sell a gun to Colby, but it refused to use its discretion to refrain from making the sale. Two days later, Colby walked into the shop, purchased a pistol and then went home and used the gun to kill her father.</p>
<h2>Limited legal avenues</h2>
<p>Colby’s mother sued the gun shop for negligently selling the gun to her daughter despite being specifically warned of the danger. </p>
<p>The case is compelling, for even many gun rights advocates would be troubled to hear that a gun store would ignore such a highly specific warning about a particular customer, particularly a desperate plea from a mother worried about her child. </p>
<p>But for the case to have any chance of succeeding, lawyers bringing it had to try to squeeze it into one of the narrow categories of claims that the federal law allows against gun dealers. So far at least, they have failed, as the case was thrown out on the ground that all of the legal theories asserted in the case are either barred by the federal statute or not recognized under Missouri law. </p>
<p>The <a href="http://www.courts.mo.gov/SUP/index.nsf/fe8feff4659e0b7b8625699f0079eddf/e2d6549959ec07be86257ee500098d4c?OpenDocument">Supreme Court of Missouri</a> will hear arguments in the case on December 9. It is likely to take a few months to announce its decision, but when it does so, it can save the day by declaring that Colby’s mother has a claim that is viable under Missouri law and not precluded by the federal statute. </p>
<p>But bringing the lawsuit would not be such a convoluted, uphill battle if Congress had not bestowed special legal immunity on the gun shop and every other company in the gun business.</p>
<h2>Rethinking immunity</h2>
<p>At the same time, I would argue that gun manufacturers and dealers should not be subject to any extraordinary forms of liability that do not apply to other products. </p>
<p>They should not be liable, for example, merely because a firearm is a weapon that is capable of being used to do harm. But if a gun manufacturer or dealer fails to take basic, reasonable precautions in distributing products, it should be held accountable under the law just as an irresponsible company in any other business would be. </p>
<p>Think about what the threat of liability for defective cars like the <a href="http://www.motherjones.com/politics/1977/09/pinto-madness">Ford Pinto</a> has done for auto safety, or how the risk of liability for a dangerous product like the <a href="http://www.nytimes.com/1987/12/06/magazine/the-sad-legacy-of-the-dalkon-shield.html">Dalkon Shield contraceptive device</a> gives good incentives to the manufacturers of pharmaceuticals and other medical products. Why should the makers of firearms be any different?</p>
<p>With the risks of firearms in the wrong hands becoming ever more apparent, Congress should reconsider its regrettable decision to give the gun industry special immunity from legal responsibility.</p><img src="https://counter.theconversation.com/content/51950/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Allen Rostron is an associate dean and professor at the University of Missouri - Kansas City School of Law. He was a senior staff attorney at the Brady Center to Prevent Gun Violence prior to becoming a law professor in 2003. The Brady Center represents plaintiffs in the cases discussed in this article.</span></em></p>Finding solutions for what happened in San Bernardino is a challenge, but ensuring gunmakers behave responsibly should be one piece of the puzzle.Allen Rostron, Associate Dean for Students and William R. Jacques Constitutional Law Scholar and Professor of Law, University of Missouri-Kansas CityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/457712015-08-16T20:25:32Z2015-08-16T20:25:32ZWho’s to blame when artificial intelligence systems go wrong?<figure><img src="https://images.theconversation.com/files/91847/original/image-20150813-21432-1s2zs3c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Robots in chains but are they really to blame when AI does something wrong?</span> <span class="attribution"><a class="source" href="http://www.shutterstock.com/pic-209367331/stock-photo-chained-robot-concept.html">maxuser</a></span></figcaption></figure><p>There has been much discussion of late of the ethics of artificial intelligence (AI), especially regarding <a href="https://theconversation.com/open-letter-we-must-stop-killer-robots-before-they-are-built-44577">robot weapons development</a> and a related but more general discussion about AI as an existential <a href="https://theconversation.com/elon-musk-is-right-we-need-to-talk-about-artificial-intelligence-33577">threat to humanity</a>.</p>
<p>If Skynet of the Terminator movies is going to exterminate us, then it seems pretty tame – if not pointless – to start discussing regulation and liability. But, as legal philosopher John Donaher has <a href="http://hplusmagazine.com/2015/07/15/is-regulation-of-artificial-intelligence-possible/">pointed out</a>, if these areas are promptly and thoughtfully addressed, that could help to reduce existential risk over the longer term.</p>
<p>In relation to AI, regulation and liability are two sides of the same safety/public welfare coin. Regulation is about ensuring that AI systems are as safe as possible; liability is about establishing who we can blame – or, more accurately, get legal redress from – when something goes wrong.</p>
<h2>The finger of blame</h2>
<p>Taking liability first, let’s consider tort (civil wrong) liability. Imagine the following near-future scenario. A driverless tractor is instructed to drill seed in Farmer A’s field but actually does so in Farmer B’s field.</p>
<p>Let’s assume that Farmer A gave proper instructions. Let’s also assume that there was nothing extra that Farmer A should have done, such as placing radio beacons at field boundaries. Now suppose Farmer B wants to sue for negligence (for ease and speed, we’ll ignore nuisance and trespass).</p>
<p>Is Farmer A liable? Probably not. Is the tractor manufacturer liable? Possibly, but there would be complex arguments around duty and standard of care, such as what are the relevant industry standards, and are the manufacturer’s specifications appropriate in light of those standards? There would also be issues over whether the unwanted planting represented damage to property or pure economic loss.</p>
<p>So far, we have implicitly assumed the tractor manufacturer developed the system software. But what if a third party developed the AI system? What if there was code from more than one developer?</p>
<p>Over time, the further that AI systems move away from classical algorithms and coding, the more they will display behaviours that were not just unforeseen by their creators but were wholly unforeseeable. This is significant because <a href="http://legal-dictionary.thefreedictionary.com/Foreseeability">foreseeability</a> is a key ingredient for liability in negligence.</p>
<p>To understand the foreseeability issue better, let’s take a scenario where, perhaps only a decade or two after the planting incident above, an advanced, fully autonomous AI-driven robot accidentally injures or kills a human and there have been no substantial changes to the law. In this scenario, the lack of foreseeability could result in nobody at all being liable in negligence.</p>
<h2>Blame the AI robot</h2>
<p>Why not deem the robot itself liable? After all, there has already been some discussion about <a href="https://theconversation.com/chappie-suggests-its-time-to-think-about-the-rights-of-robots-37955">AI personhood</a> and possible criminal liability of <a href="https://theconversation.com/robot-law-what-happens-if-intelligent-machines-commit-crimes-44058">AI systems</a>.</p>
<p>But would that approach actually make a difference here? As an old friend said to me recently:</p>
<blockquote>
<p>Will AI systems really be like Isaac Asimov’s Bicentennial Man – obedient to the law, with a moral conscience and a hefty bank balance?</p>
</blockquote>
<p>Leaving aside whether AI systems can be sued, AI manufacturers and developers will probably have to be put back into the frame. This might involve replacing negligence with <a href="http://legal-dictionary.thefreedictionary.com/strict+liability">strict liability</a> – liability applied without any need to prove fault or negligence.</p>
<p>Strict liability already exists for defective product claims in many places. Alternatively there could be a no fault liability scheme with a claims pool contributed to by the AI industry.</p>
<h2>Rules and regulations</h2>
<p>On the regulatory side, development of rigorous safety standards and establishing safety certification processes will be absolutely essential. But designing and operating a suitable framework of institutions and processes will be tricky.</p>
<p>AI expert input will be needed in establishing any framework because of the complexity of the area and the general lack of understanding outside the AI R&D community. This also means that advisory committees to legislatures and governments should be established as soon as possible.</p>
<p>Acknowledging that there are potentially massive benefits to AI, there will be an ongoing balancing act to create, update and enforce standards and processes that maximise public welfare and safety without stifling innovation or creating unnecessary compliance burdens.</p>
<p>Any framework developed will also have to be flexible enough to take account of both local considerations (the extent of own production versus import of AI technology in each country) and global considerations (possible mutual recognition of safety standards and certification between countries, the need to comply with any future international treaties or conventions etc).</p>
<p>So as we travel down the AI R&D path, we really need to start shaping the rules surrounding AI, perhaps before it’s too late.</p>
<p>We’ve already started discussions around driverless cars – see <a href="https://theconversation.com/should-your-robot-driver-kill-you-to-save-a-childs-life-29926">here</a> and <a href="https://theconversation.com/driverless-cars-are-a-catch-22-we-do-none-of-the-driving-but-take-all-of-the-responsibility-43285">here</a> – but there’s so much more to deal with when it comes to AI.</p>
<p>What do we do next? Over to you.</p><img src="https://counter.theconversation.com/content/45771/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gary Lea does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There is much debate on the ethics of artificial intelligence machines that are designed to kill. But who’s responsible when a non-lethal AI system causes damage, harm or even death?Gary Lea, Visiting Researcher in Artificial Intelligence Regulation, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/253912014-07-03T20:32:28Z2014-07-03T20:32:28ZWill the climate debate end up being fought in court?<figure><img src="https://images.theconversation.com/files/52929/original/qyzpfrr2-1404355446.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Could politicians and scientists in the future be charged with "climate negligence"?</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/go_greener_oz/3046225225">Julie G/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span></figcaption></figure><p>Society generally has a clear idea of what constitutes a crime, and those in positions of power are usually held to very high standards. Politicians charged with making decisions on the needs of society are held accountable for unprofessional behaviour.</p>
<p>New South Wales Premier Barry O’Farrell, for example, <a href="http://www.abc.net.au/news/2014-04-16/nsw-premier-barry-ofarrell-to-resign-over-icac-grange-wine/5393478">chose to resign</a> in April over a “massive memory fail”, after initially denying he had received an expensive bottle of wine from an Australian Water Holdings executive.</p>
<p>Neglecting to take action can also be considered criminal. In the same way that doctors who fail to diagnose an illness may be charged with malpractice, politicians can face similar charges for failing to adequately do their jobs.</p>
<p>These crimes may seem more clear-cut – but what happens when it comes to accountability for environmental issues, and more specifically, climate change?</p>
<h2>Predicting disasters and legal risk</h2>
<p>When government action or inaction leads to the direct harm of citizens due to environmental risks and natural hazards, they should be held to account. </p>
<p>This logic saw residents of New Orleans sue the United States government for damages caused by flooding associated with Hurricane Katrina, after a federal judge ruled the US Army Corps of Engineers <a href="http://articles.latimes.com/2009/nov/19/nation/na-katrina-flooding19">displayed gross negligence</a> by failing to maintain a shipping channel next to a levee protecting the city. </p>
<p>In another case in 2009, seven scientists and civil servants were <a href="http://theconversation.com/scientists-found-guilty-for-laquila-earthquake-deaths-but-why-10292">convicted of manslaughter</a> after failing to give adequate warning of an impending earthquake in L’Aquila, Italy, that killed 309 people. </p>
<p>We are yet to see if and how politicians and scientists will be held accountable for increased greenhouse gas emissions leading to climate change. But a recent area of legal development is arising in this area, known as <a href="http://www.brrmedia.com/event/117353/mark-baker-jones-special-counsel">climate legal risk</a>, defined as the risk of liability or adverse legal outcomes arising when the impacts of climate change (such as flooding, bushfire and coastal hazards) affect an organisation’s operations. </p>
<p>“Unacceptable impacts from predicted climate change” has been used to reject planning applications. In 2010 the Victorian Civil and Administrative Tribunal <a href="http://www.thefifthestate.com.au/archives/9043/">rejected a proposal</a> to subdivide a coastal property for development due to predictions that the land would be inundated within a century. The case marked a critical point in planning law and sent an important message to coastal planning decision makers about the increasing relevance of climate-related flooding.</p>
<p>In another case brought to the courtrooms by environmentalist <a href="http://en.wikipedia.org/wiki/Pete_Gray_(activist)">Pete Gray</a>, the <a href="http://www.lec.lawlink.nsw.gov.au/lec/index.html">Land and Environment Court of New South Wales</a> found that the approved expansion of the Anvil Hill Coal Mine had failed to properly assess the greenhouse gas pollution impacts of the future use of mined coal. </p>
<p>The most recent <a href="https://theconversation.com/climate-change-and-health-ipcc-reports-emerging-risks-emerging-consensus-24213">Intergovernmental Panel on Climate Change report</a> paints a bleak picture of what will happen if we continue to pump greenhouse gas emissions into the atmosphere. The risks of extreme weather, droughts, floods, cyclones and marine inundations are all significantly increased.</p>
<p>Currently, governments and mainstream politicians that openly dispute human-caused climate change are rare. What is far more prevalent is a <a href="http://www.bbc.com/news/science-environment-26824943">lack of meaningful action</a> in government to combat it.</p>
<p>But with the IPCC so clearly stating the need for action, there is now the very real risk that politicians, media outlets and scientists could face legal prosecution for their role in delaying action that could have saved properties, livelihoods and lives. </p>
<p>A broader international criminal framework identifying destruction of ecosystems, including through increasing greenhouse gas emissions, has been developed and termed “<a href="http://www.eradicatingecocide.com">ecocide</a>”, though it has yet to be legislated.</p>
<h2>Should scientists be held accountable for inaction?</h2>
<p>As the number of climate change related extreme events increase, we need to ask who should be held accountable for them. As we saw in L'Aquila, some believe that at least some of the responsibility falls on scientists. Perhaps it is the role of scientists to ensure that climate change warnings (such as those made by the IPCC) lead to actions like evacuation of natural disaster areas and meaningful policy change.</p>
<p>Scientists don’t have the power to make decisions in government or society. They are funded as researchers and experts, to advance knowledge and advise our elected officials. Scientists can only control what they say, and the urgency that they attach to it; not what is done with that advice. </p>
<p>But, like other people, scientists can be prone to hyperbole. Scientists have been <a href="http://www.ucl.ac.uk/public-policy/Policy_Commissions/Communication-climate-science/Communication-climate-science-report/TIME_FOR_CHANGE_Final_Proof.pdf">criticised for overdramatising</a> the consequences of inaction with regards to climate change, which can be overwhelming and may lead to a paralysis of action - a situation termed “climate fatigue”. </p>
<p>Transforming scientific research into policy is a messy process. It requires a range of scientific, communication and change management skills, the combination of which most scientists do not possess, and perhaps should not be expected to. However as we have seen, individuals and groups can be held accountable for inaction that leads to disastrous outcomes, and neither climate scientists or policy makers are likely to get a free pass.</p>
<h2>Avoiding lawyers at 50 paces</h2>
<p>In most situations, legal action comes only as a last resort when all other avenues of communication have broken down. And so in the climate debate, lawyers at 50 paces may only further inflame and entrench positions.</p>
<p>The climate issue needs leadership, not recrimination. We need leadership from scientists who can move from proclaiming the problem into practical uptake of solutions. </p>
<p>Likewise, leadership is needed from elected officials, who need to start working with the scientific community they have supported to develop evidence-based policy. </p>
<p>We need <a href="https://theconversation.com/chief-scientist-urges-corporate-chiefs-to-show-leadership-on-climate-change-26404">leadership from industry</a>, to start engaging with the climate debate. And in the run up to the <a href="http://www.un.org/climatechange/summit2014/">United Nations Climate Summit</a> set for September 2014 in New York and further talks <a href="https://unfccc.int/meetings/unfccc_calendar/items/2655.php?year=2015">in Paris next year</a>, we need <a href="http://www.abc.net.au/science/articles/2014/04/23/3990450.htm">global leaders</a> to step up to help move society to the next phase of climate action.</p>
<p>In the future, it will not have been enough of a defence to say that climate change inaction was a result of lack of evidence. <a href="http://www.genengnews.com/gen-news-highlights/hillary-clinton-states-stand-on-biotech-and-climate-change/81250038/">We have the evidence and we know that we should act</a>. If we do nothing now, future generations may take a legal perspective on our actions, or lack of them, bringing to The Hague a retrospective crime against humanity – climate negligence.</p>
<p><em>The authors would like to acknowledge the valuable contribution of Tim Vines in discussion of the ideas behind this piece.</em></p><img src="https://counter.theconversation.com/content/25391/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrew Lowe receives funding from the Australian Research Council.</span></em></p><p class="fine-print"><em><span>Stefan Caddy-Retalic is Director of the Australian Transect Network, a facility of the Terrestrial Ecosystem Research Network (TERN). TERN receives funding from the Department of Education.</span></em></p>Society generally has a clear idea of what constitutes a crime, and those in positions of power are usually held to very high standards. Politicians charged with making decisions on the needs of society…Andrew Lowe, Professor of Plant Conservation Biology, University of AdelaideStefan Caddy-Retalic, Transect Ecologist, University of AdelaideLicensed as Creative Commons – attribution, no derivatives.