Legal responsibility and 3D printing

For many of us the idea of 3D printing has until recently only existed in science fiction movies. However, the concept of 3D printing was developed in the 1980s and is now becoming increasingly common.

What is 3D printing?

3D printing (technically referred to as additive manufacturing) is essentially a computer controlled process which successively layers a designated material to create a 3 dimensional object. It can be distinguished from the traditional subtractive manufacturing process, whereby the material is cut and manipulated into the desired item.

3D printing is starting to become a reality on site. For example, in 2014, Arup produced 1,200 customised steel nodes using 3D printing for the Grote Marktstraat project in The Hague. In addition, in 2016, a team from the Institute of Advanced Architecture of Catalonia used micro-reinforced concrete to construct a pedestrian bridge for the first time using a 3D printer.

Benefits to the construction industry

The construction industry has always faced conflicts between cost and quality. The ability to 3D print products should therefore become increasingly attractive, as it offers the opportunity to increase quality at a lower cost. In particular, 3D printing should allow more design freedom, adaptability and accurate construction of bespoke or complex items, whilst reducing the need for complex work to be carried out on site.

Behrokh Khoshnevis of the University of Southern California has estimated that 3D printing will reduce the cost of commercial construction by 25-30% in materials and 45-55% in labour.

Who is responsible if things go wrong?

There are therefore potentially numerous benefits to 3D printing. However, as with all construction projects, a key issue will be how the risks are allocated? Ultimately, it will depend on what the contract says, who carried out the design for the item and who was responsible for manufacturing the product.

If a defect arises in an element of work that has been 3D printed, there could be a number of possible causes:

Defective design of the item to be 3D printed. For example, in the CAD drawings inputted into the 3D printer. The responsibility will depend on the procurement route. If a contractor has accepted design responsibility for that element of work, then the liability will fall to the contractor (even if the design was originally carried out by the employer’s professional team). As with any design and build situation, the contractor would have to ensure that it had a right to recover against the relevant consultant who undertook the design for that element of work. However, if the employer chooses a traditional procurement route and the design responsibility remains with the professional team, the employer would have to claim against the consultant responsible for the design used for the 3D printing.
A malfunction in the 3D printer. For example, it did not produce the relevant item to the size or strength required. Depending on what had been 3D printed, this could lead to a significant defect in the works, particularly if the item concerned was key to the structural stability of the works. As a matter of legal principle, the losses arising from such a defect could potentially be recoverable from the supplier of the 3D printer. However, such a supplier is likely to seek to limit its liability, for example to the cost of replacing a defective 3D printer. In such a situation, the liability would remain with the relevant contractor.
An error in the operation of the 3D printer or a failure due to lack of maintenance of the 3D printer. This is likely to be the responsibility of the relevant contractor in the same manner as a workmanship defect would be.

It will therefore be important to consider whether insurance could be procured for the use of such new technology. Design defects could potentially be covered by PI insurance. However, there may be no insurance available for operator error or the 3D printer malfunctioning.

Another issue to consider is the risk of the 3D printer being hacked. However, it may be that this risk can be covered by appropriate insurance, as such cyber risk insurance is becoming increasing available.

Conclusion

Whilst the potential range of 3D printed structures is impressive, it will still require expensive and complex equipment. Therefore, it seems much more likely at this stage that 3D printing will be used to manufacture specialist components rather than completely replace traditional construction techniques.

As so often, the responsibility for any defects in such 3D printing will depend on the terms of the relevant contracts and insurance is likely to form an important part of the risk allocation process.

This article was written by Rebecca Morjaria. For more information please get in touch with Rebecca via rebecca.morjaria@crsblaw.com or +44 (0)20 7438 2125.

This article was first published in Building.