With the UK release of the new Pokemon Go mobile app, the Association of British Insurers (ABI) has issued a warning that users “do not drive whilst playing the game, and are aware of their surroundings at all times.” For those unfamiliar with the ‘augmented reality’ game, it allows users, via their smartphone, to ‘capture’ digital creatures at various real locations.
As unnecessary as the advice from the ABI might seem to some, it is informed by the increasing list of news stories from the USA (land of the free, home of the brave and the birthplace of modern personal injury litigation) of people driving cars into trees, abandoning cars in dangerous locations on the highway, teenagers walking into the path of (and being struck by) vehicles, and grown adults falling down ditches, all whilst searching for elusive Pokemon.
There have also been stories of ‘unintentional’ trespass, the most serious perhaps being at a Nuclear Power facility in Ohio.
This comes as a consequence of users approaching the real-life world through the very narrow view of their smartphone screen.
The prophecy from a Texas Law Professor that “death by Pokemon is coming” references what might be considered a US specific issue; a combination of legitimate gun ownership and desire to protect property from those who might be considered ‘home invaders’ rather than ‘unintentional trespassers’ but it is easy to see how a lack of concentration and awareness from being absorbed in augmented reality can put the individual and wider public in harm’s way.
The UK courts have determined liability in all manner of circumstances that have led to the most serious personal injuries. The law (civil and criminal) on the use of hand held devices whilst driving is well established, as is the liability of pedestrians who enter the highway without paying proper attention, but the imminent reality of driverless cars on our roads, adds another element that the courts have not so far faced.
And what of potential claims against the software developers and phone companies for failing to warn about unsafe use of the app, or failing to prevent its use in transit altogether, for example by reference to the gadget’s location services?
Away from the highway, the law dealing with the liability of occupiers to visitors (invited or otherwise) is similarly sound, but does this development in technology and, in particular, this latest craze of digital interaction with the real word, create new risks and so new liabilities?
Perhaps with the benefit of a steer from its American owners, Asda has been one of the first to engage with the public by issuing in-store guidelines for customers searching for Pokemon – but does this kind of light hearted take create a potential liability for retailers?
There are the reported (and sometimes apocryphal) cases of successful claims against retailers for injuries caused by customers slipping on grapes, yoghurt and other discarded stock, but how soon will it be before a letter of claim alleges that an injury was caused by “the store’s failure to warn, protect or otherwise guard against injury that was reasonably foreseeable by my client searching for, inter alia, the Pikachu, Geodude, Sudowoodo that the store knew, or ought reasonably to have known, could be found in its store.”
The potential for highway and occupier liability claims are perhaps the most obvious to consider, but there are already far more sinister warnings in reports that Pokemon Go could be used by paedophiles to lure unsuspecting young players.
Away from injury and abuse, there is also a wider concern of intellectual property and product liability issues that creates a potential fallout from an insurance and risk perspective far beyond the digital considerations of Pokemon Go.
It seems the law of unintended consequence can occur in augmented reality just as it does in real life and whilst technological progress is inevitable, the warning from the ABI is a stark reminder that common sense is sometimes a step behind.
David Spencer, Partner, BLM – firstname.lastname@example.org