Evaluation of Legal Liability for Technological Risks in View of Requirements for Peaceful Coexistence and Progress


Henk Zandvoort, Faculty of Technology, Policy and Management, Delft University of Technology, P.O. Box 5015, 2600 GA Delft, The Netherlands; h.zandvoort@tudelft.nl.


Legal liability for risk-generating technological activities is evaluated in view of requirements that are necessary for peaceful human coexistence and progress in order to show possibilities for improvement. The requirements imply, given that political decision making about the activities proceeds on the basis of majority rule, that legal liability should be unconditional (absolute, strict) and unlimited (full). We analyze actual liability in international law for various risk-generating technological activities, to conclude that nowhere is the standard of unconditional and unlimited liability fully met. Apart from that there are enormous differences. Although significant international liability legislation is in place for some risk-generating technological activities, legislation is virtually absent for others. We discuss fundamental possibilities and limitations of liability and private insurance to secure credible and ethically sound risk assessment and risk management practices. The limitations stem from problems of establishing a causal link between an activity and a harm; compensating irreparable harm; financial warranty; moral hazard in insurance and in organizations; and discounting future damage to present value. As our requirements call for prior agreement among all who are subjected to the risks of an activity about the settlement of these difficult problems, precautionary ex ante regulation of risk-generating activities may be a more attractive option, either combined with liability stipulations or not. However, if ex ante regulation is not based on the consent of all subjected to the risks, it remains that the basis of liability in the law should be unconditional and unlimited liability.