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Artificial intelligence (AI) is increasingly being used across the construction industry for a whole host of tasks – such as tracking interactions between workers, machinery and objects on site and to alert workers of potential safety issues and errors.

As AI technology develops at such a fast pace and takes over increasingly from human decision-making, it is inevitable that some AI systems will fail to perform properly. Given the increasing use of AI technology in the construction industry and the potential damage caused by its failure, we are likely to see an increase in AI-related disputes over the next decade.

There are government proposals to require a person to be held legally responsible for any problems arising from an AI system, but it is yet to be debated.

Who is liable for personal injury when something goes wrong?

An injured employee would need to establish that the defendant (whoever that may be) owed them a duty of care, breached that duty and that the breach caused them to sustain injury. All employees are owed a duty of care by their employer who must adhere to workplace regulations to ensure, in so far as they are able, the safety of their employees.

Ultimately the cause of an AI system’s failure to perform is the key element for establishing a breach of a duty of care in personal injury claims. Under each claim, the fault or defect must have caused the damage or loss suffered. 

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As there are many parties involved in an AI system (data provider, designer, manufacturer, programmer, developer, owner, user and the AI system itself), liability is difficult to establish when something goes wrong and there are many factors to be taken into consideration.

As the law currently stands, the user of an AI system is less likely to be at fault than the manufacturer

For example, in situations where personal injury was suffered because AI systems were in use and instructions were not followed or general or specific limitations were not communicated to the user, then the owner of the AI system (likely to be the employer) could be found to be at fault. If the issue can be traced back to the design or production of the AI system, then it could be the designer or manufacturer at fault.

As the law currently stands, the user of an AI system is less likely to be at fault than the manufacturer. Whether a manufacturer is liable will depend on the relevant industry standards of care and whether the specifications were appropriate in light of those standards. There may be further debates as to whether and to what extent fault may lie with the programmer, the designer or the expert who provided the knowledge to the AI system.

Where an AI system is fully autonomous or is far removed from human decision-making, it will become more difficult to establish proximity and foreseeability. Such cases are likely to involve complicated and competing expert evidence regarding whether the AI system functioned as it should have done.

A worker’s rights if injured by AI operated machinery

Employees are entitled to work in environments where the risks to their health and safety are minimised which reduces the risk of them sustaining injury at work. Under health and safety law, the primary responsibility for this is with the employer.

If a worker has specific health and safety concerns relating to the AI systems being used in their workplace, and worry that they or someone they work with is at risk from , they should speak to their supervisor, health and safety or trade union representative.

An agency worker’s health and safety is still protected by law, and their employment agency has a duty to make sure that the person or company they are working for follows that law. The agency has as much of a duty as the actual employer to ensure that a worker avoids suffering an accident at work.

Unfortunately, accidents at work do occur and this could involve an AI system that has failed. A worker who has been injured may be able to bring a personal injury claim against their employer or potentially the manufacturer of the AI system. A civil claim aims to compensate for the pain, suffering and loss of amenity experienced and any associated financial losses that have incurred.

There are time limits relating to personal injury and a claim needs to be made within three years of the date of the accident taking place. Court proceedings must be issued ahead of this deadline in order to protect any right to compensation that the injured person may have. While there may be some exceptions to this rule, it is vital to take legal advice at as early a stage as possible.

Charlotte Dowson is a senior solicitor in the accident claims team at Bolt Burdon Kemp