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With Great Power Comes Great Responsibility

Roddy Cairns


Trojan Energy

Roddy Cairns, solicitor at Burness Paull, assesses the product liability risks of electric vehicles.

The previously slow meander towards electrification of the automotive industry has appeared to accelerate greatly in the last year.

Recent news stories have suggested that electric and hybrid vehicles (known collectively as Ultra Low Emissions Vehicles, or ULEVs) will gain a far greater share of the automotive market in the coming years.

Last summer, the governments of Europe appeared to be falling over one another to make promises to ban the sale of new petrol and diesel cars, with the Scottish and Westminster governments undertaking to do so by 2032 and 2040 respectively. Manufacturers were ahead of the game, with giants such as Volvo having already announced that they will switch to hybrid and electric vehicle production only within the next few years.

Challenges to overcome

The eventual replacement of fossil fuel vehicles with those running predominantly on electricity, while a potentially very welcome shift in environmental terms, represents a fundamental change in the way that transport is powered. While this brings with it a raft of new opportunities for the automotive industry (as discussed elsewhere in this series of blogs), there will also be additional challenges to be overcome. Among these is the rise of new (or, at least, newly widespread) electric vehicle specific product liability issues.

Roddy Cairns, solicitor at Burness Paull

Roddy Cairns, solicitor at Burness Paull

The most obvious such issue comes from the powerful Lithium-Ion batteries that are powering the electric vehicle revolution; overheating or impact damage to the battery’s cell structure can cause these to explode or burst into flames, a phenomenon that has already occurred on several occasions. To make matters worse, the combination of electricity and chemicals involved in the batteries can make fires difficult to extinguish by conventional means. In addition, the defects seen in industries where this power source is more firmly established serve as a warning to the automotive sector – Dell laptop computers and Samsung mobile phones are amongst the products that have faced well-publicised issues with their Lithium-Ion batteries overheating or exploding in the past.

In some instances, the fires have commenced while the battery was charging, leading to questions over whether it was the car, the battery, the charging point, or some combination of them that was at fault. In one high profile incident in Norway (in which a Tesla Supercharger was destroyed after catching fire while charging), investigations by both Tesla and the Norwegian Accident Investigation Board proved inconclusive, although Tesla blamed the fire on a short circuit in the vehicle’s distribution box and undertook to upgrade its software.

There are other, less immediately obvious, risks associated with the increase in electric vehicle use, and it may be that these come into sharper focus over the next few years. Recent studies have suggested that the electromagnetic fields emitted by batteries could cause increased risk of cancer, even when fully compliant with current standards. There have also been issues with the sophisticated software required for electric vehicles, and even with braking distances required (due to the heavy batteries involved).

With recent statistics suggesting that 99.2% of vehicles licensed for use on the roads in Scotland are still powered by either petrol or diesel, it is fair to say that we don’t yet have a sufficient sample size to allow us to assess exactly how real or widespread these liabilities will ultimately prove to be.

However, such a technologically driven industry will be well aware of the importance of horizon scanning, and, with liability under the Consumer Protection Act 2015 potentially attaching to all points in the supply chain, it is not only electric vehicle makers such as Tesla who will be concerned by the various product liability risks set out above.

Battery makers, software manufacturers, charging point operators and many others will require to consider their potential liability if the particular slice of the electric vehicle revolution for which they are responsible proves to be defective. As always, it is vital that these responsibilities are not forgotten in the excitement of the headlong charge towards widespread use of electric vehicles.

Roddy Cairns

Roddy Cairns


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