The role of the judiciary in protecting the right to compensation for the risks of scientific and technical development

Abstract

The risks of scientific and technical development arise from defects that the state of the product's scientific and technical knowledge did not allow to be discovered at the time the product was put into circulation. This paper discusses the liability for these risks by simplifying the jurisprudential, legislative and judicial content of these risks, and seeks ways and means that can help the judiciary to achieve its noble goals of justice and relief for those affected by these risks.
The issue of liability for the risks of scientific and technical development has sparked a great jurisprudential debate, which has had an impact on many comparative legislations, some of which have excluded all products from the scope of liability for these risks, while others have excluded some specific types, such as medicines and food products. The Moroccan Code of Obligations and Contracts makes the risks of scientific and technical development a reason for exemption from civil liability, which means that those affected by these risks, no matter how serious or minor the damage suffered, are not entitled to any compensation. While this legal position may be justified from a practical and economic standpoint, the principles of justice and fairness do not allow for these affected individuals to remain without compensation. The study recommends that the judiciary should play an important role in achieving justice and redress or at least provide relief in cases in which they are exposed to serious damages resulting from the risks of scientific and technical development; there are precedents issued by the Moroccan judiciary that constitute a starting point towards establishing an effective judicial role in compensating the risks of scientific and technical development. The study also recommends the need to create a national fund within the framework of national solidarity and within the principle of equality before public burdens that aims to provide compensation for these risks.