n Comparative and International Law Journal of Southern Africa - Delictual liability arising from the use of defective software : comparative notes on the positions of parties in English law and South African law




Software-controlled processes have become indispensable in all walks of life. Everyday objects such as washing machines, microwave ovens, and traffic lights are microprocessor-controlled, most office workers now use computers as part of their daily activities, and software is used to manage many safety-critical applications such as life-sustaining units in hospitals. In the event of a malfunction, losses may occur and potential liability arises. Defective software can cause serious damage resulting in personal and patrimonial injury. In contrast to the casuistic approach of English tort law, the South African law of delict is based on general principles whereby any damage caused wrongfully and culpably, is actionable. These principles apply to any infringement of individual interests, including, it is submitted, injury caused by the unjustifiable use of defective software. This article comments on some aspects of the delictual or tortious liability of the producers of software for damage caused by the use of defective software, and highlights the different approaches that will be followed by these two legal systems with regard to resultant actions. It is pointed out that in both jurisdictions, most software liability actions will be based on negligence or products liability. In the case of software with an intellectual output consisting of information, errors may constitute a negligent misrepresentation on the part of the producer. Defective software may attract products liability based on a defective product. In conclusion it will be pointed out that claimants under English law may be in a better position than their South African counterparts due to the possibility of advancing a strict products liability claim, thereby relieving the plaintiff of the onerous duty to prove fault in the sophisticated high-technology world of the software industry.


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