A landmark new legal statement confirms that failing to use artificial intelligence (AI) may in some cases be legally dangerous.

The UK Jurisdiction Taskforce's newly published Legal Statement on Liability for AI Harms, a taskforce chaired by Sir Geoffrey Vos, the Master of the Rolls, confirms that liability can flow both from using AI negligently and even from failing to use it at all.

No new law required

One of the statement's headline conclusions is that no AI-specific legislation is needed for AI liabilities against professionals to arise. The lack of any AI-specific liability regime does not mean that English law cannot answer the question of whether and when a person may be liable for harms caused by the use of, (or failure to use) AI.

In the absence of a relevant contract, the question of whether a party is liable for loss caused non-deliberately by the use of AI will in many circumstances fall to be determined by reference to the law of negligence: A person is liable where a duty of care is owed, where that person fails to meet the required standard of care, and where this failure caused foreseeable harm.

Professionals such as lawyers, architects, and doctors have an obligation to exercise reasonable skill and care in carrying out their duties. This obligation applies to their use of AI just as it does to any other aspect of their work. A professional could therefore be liable for failing to use AI in circumstances where a competent member of their profession would have done so (and where the failure to use AI has caused a foreseeable loss to a third party).

Liability for failing to use AI

The statement says that the duty of care can, in appropriate circumstances, require a professional to use AI. The possibility of breaches of duty arising from a failure to use AI reflects the fact that AI, in a professional's hands, is a tool. The question of whether such a tool should be used, and if so how, is no different from that which arises in respect of any other tool available to a professional.

The statement offers three examples:

• A radiologist fails to use an AI system that is extremely effective at identifying cancerous tumours and could have been procured at a reasonable cost.
• An auditor fails to use an AI system to help detect anomalies and fraud in a business that involves a very large number of similar individual transactions, where individual human review would be impossible in practical terms.
• A solicitor fails to advise their client that it may wish to consider some form of AI-assisted tool in order to review large volumes of documents.

A shifting standard

The statement makes clear that the standard of "reasonable skill and care" is not static. What constitutes reasonable skill and care changes over time. Scientific or other advances might mean that certain acts, techniques, or tools that once did not exist or were not commonplace, are now expected of a reasonably competent professional. Therefore, the question of whether a professional has acted with reasonable care and skill will need to take into account the rapid developments in AI with regard to its use in a particular profession.

Conclusion

The obligation to perform duties with reasonable skill and care applies to the use of AI by a professional to the same extent as anything else a professional does or fails to do. If a professional negligently fails to use AI when it should have been used, then if that negligence causes an affected party to suffer foreseeable loss, the professional can expect to be held liable. The age of treating AI as an optional extra in professional practice may be coming to an end.

Professional indemnity insurers should consider their underwriting appetite and policy wording protections in relation to their insureds’ use of AI.