The Missing Proof.

In brief

The paper joins the law of reasonable care to the economics of evidence production: the person affected may be unable to reconstruct a record that others could have generated, and those others may lack an incentive to pay for it. Industry custom deserves weight, but what it tells a court depends on how the practice developed and whose interests it reflects. The paper separates the party best placed to prevent harm from the party best placed to produce evidence about it. Within an applicable duty, it sets out when omitting a specified recording capability may support breach. Causation remains separately necessary. It argues for no general duty to instrument AI and no reversal of the burden of proof. The aim is to make responsible conduct demonstrable and consequential errors contestable.

The paper’s worked examples are drawn from healthcare; the argument is general.

Reasonable care, and the evidence it leaves

Industry custom deserves weight, but how much depends on how the practice developed and whose interests it reflects. The paper separates two questions that tend to be merged: which party was best placed to prevent an accident, and which party was best placed to produce evidence about it. They are not always the same party, and the second question is rarely asked out loud.

Within an applicable duty, the omission of a specified recording capability may support breach where the capability performs a concrete safety function, lies within the defendant’s practical control, and imposes a proportionate burden. Causation remains separately necessary. The paper argues for none of the shortcuts that argument is often mistaken for: no general legal duty to instrument AI, no reversal of the burden of proof, and no new tort.

What AI insurance can read from a record

An operative control, a retained record and verification that does not depend on the supplier’s interface each need their own justification. A signature shows that a record has not changed since a commitment was made. It does not show that the observation behind it was accurate, complete, adequate, compliant or admissible, and a paper that claimed otherwise would be selling something.

Where evidence chiefly supports accountability after harm, procurement and institutional arrangements can supply a basis for requiring it without stretching preservation law. The paper develops an information-forcing contractual proposal, sets out the conditions under which safety commitments could become commercially consequential, and proposes comparison against competent conventional records. Insurers, purchasers and courts set their own requirements; nothing here anticipates them.

What’s inside the paper

• The allocation problem: an AI action crosses several organisations and none of them holds the whole account
• What industry custom can tell a court, and what its informational value depends on
• The party best placed to prevent harm, and the party best placed to preserve evidence
• Four considerations that organise a breach inquiry into a specified recording omission, proposed rather than established
• Why an operative control, a retained record and verification each need their own justification
• An information-forcing contractual proposal, and how procurement can require what the law does not
• The limits the paper keeps: no general duty to instrument AI, no reversal of the burden of proof and no new tort

Who it’s for

Written for general counsel, for underwriters and claims teams, for risk and assurance leaders and for the standards and policy people who will decide what an AI record has to show.