Australia: 3D printing at home – Who is responsible for defective manufacture?

Last Updated: 3 August 2015
Article by Tal Williams

3D printing has been around in one form or another since 1984, when a process was introduced to transfer digital data into tangible objects. While initially utilised in experimental, technical and scientific endeavours, the technology has advanced to a point where "home printing" and desktop scale printers have been introduced to the market. The technology is now readily available to the consumer.

The question briefly addressed in this article relates to the liability issues arising out of the creation of goods via this technology.

Australia's product liability law imposes heavy burdens upon manufacturers when it comes to product safety. The whole system has been created to protect the community. It imposes strict responsibilities upon manufacturers, creates a system of product recall requirements and otherwise protects the consumers from faulty or defective goods.

The supply chain

This system has been set up within a standard distribution chain: designer; manufacturer; wholesaler; retailer and consumer.

In the 3D space, this chain is not always relevant and it is often the case that the consumer is the manufacturer. In those circumstances, the consumer must accept responsibility on behalf of both parties. Unless that consumer is able to identify third party involvement in relation to the production, then liability for any loss or damage occasioned by a defective product would remain squarely with the consumer and little or no remedy would be available to them.

And 3D printed products could be defective for multiple reasons. There could be faults in the software, defective digital design, inappropriate printing material utilised, defects in the 3D machinery itself, or simple human error. But as the manufacturer, principal responsibility for 'getting it right' rests with the consumer.

A simple scenario

Let's look at a simple scenario. Let's say that Ms Smith decides to hang a shelf on her wall at home. She orders the bracket online or attends her local hardware shop and buys one over the counter. She hangs the shelf only to find that the brackets are defective and the shelf collapses and hits a resident in the eye, causing substantial damage. The injured person can sue the manufacturer who would ordinarily have insurance. The injured party and Ms Smith should each have a remedy against the manufacturer.

In the second scenario, Ms Smith decides to print her own bracket. She may even order the software from the same company that produces the actual brackets. Again, the bracket is defective and breaks causing injury. In this instance, Ms Smith is not only the consumer but, by virtue of her utilisation of the 3D printing technology, is arguably also the manufacturer. All liability relating to the injury would rest with Ms Smith. She would not have the protection of insurance and the injured party may have limited recourse if Ms Smith is impecunious.

A couple of issues arise. Some home and contents policies provide cover for liability in the home and might conceivably respond subject to variations in each policy and precise policy wording. Some, however exclude liability arising out of a defective design. Query whether the bracket produced by 3D printing would be regarded as a design for the purposes of the policy.

In addition, if Ms Smith was of the view that the defect was caused by the designer of the original product, the manufacturer of the printer, the software developer, the supplier of the raw materials, or some other third party then she would have the task of identifying each of those sources and involving them in a claim for compensation.

The first point to note here is that tracing the parties responsible in relation to a 3D printer product will not be easy. Unlike traditional manufacturing process where quality and manufacturing control and verification is the norm, the creation of software, sourcing of the original product, and finding links to the supply chain is uncertain and difficult.

What is equally concerning is that the market for the provision of 3D software is, at the moment, unregulated. Such software can be sourced from anywhere in the world, and created by anyone. There are no guarantees that such software will create product that complies with any safety standards. A consumer who accesses and utilises such software must be aware of the risk that they are accepting in doing so.

Is insurance applicable?

There is also a question as to whether existing product liability insurance will be sufficient to cover the new scenarios that are created by this 3D printing regime. There is no consumer 'product liability' insurance per se and although some home and contents policies may respond, there is a material risk that consumers may not be covered. Any business utilising such technology would need to undertake a very close and careful review of their product liability insurances to ascertain its effectiveness in the face of such technology.

It is clear that the insurance industry will also need to carefully look at home and content policies and product liability and to determine whether they are sufficient or need to be extended to deal with 3D printed product.

It will be very interesting to see which way the law goes in relation to the application of product liability in relation to products created by 3D printers. At the moment, the general consensus seems to be that products in 3D printers are still in their infancy and are still somewhat unreliable. Having said that, with printers now available for under $2,000, innovative consumers are unlikely to be taking risks that need to be considered.

Certification?

One potential approach would be to create a certification process in relation to CAD software available to 3D printer users, or to specific products created by such software. Certified product could be tested and shown to produce goods that comply with product safety standards. Similar certification could be offered for materials that are to be used in the 3D process.

Potentially, consumers could be protected if they acquire software and materials from authorised providers, who sell software or materials that have the relevant certifications. Maybe product liability insurance could be attached to the product so certified. If a consumer chooses to download software from an unauthorised site and without product safety certifications, then they accept the risk in doing so. Others who choose the certified products would be protected by extended insurance arrangements.

Conclusion

3D printing is an exciting development and likely to continue to move forward. It may create a change in approach to questions of product safety and product liability which can hopefully be addressed by the industry or administrators in the not too distant future.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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