“Autonomous Driving”: Unresolved Liability Issues

It may be expected that someday vehicles will be able to participate in traffic on their own, i.e. to drive autonomously. Active advanced driver-assistance systems, such as lane departure warning systems and parking assistants, are already a common feature of vehicles, enhancing safety and driver comfort. In view of technical improvements and vehicle manufacturers’ innovative drive, “robot cars” are no longer a utopia. Just recently, a truck (issued with a special permit) took a test drive in fully automated mode on the Autobahn A8 near Stuttgart. Who, however, will be liable in traffic accidents if drivers are relegated to the back seat?

Background

Driving will only be deemed to be “autonomous” in the narrower sense if the human driver is in fact superfluous and the vehicle is able “by virtue of its own artificial intelligence” to participate in traffic as part of a transport infrastructure yet to be created. To date, our legal system is not yet equipped to regulate the use of autonomous vehicles. For example, according to the Vienna Convention on Road Traffic of 1968, an international treaty pursuant to which Germany and many other EU countries have undertaken to establish and comply with certain traffic rules (e.g. the German Road Traffic Regulations (Straßenverkehrsordnung – StVO), stipulates that vehicles generally may not be operated without a driver. The driver must be able to control, i.e. drive, the vehicle at all times. Therefore, vehicles equipped with an autonomous steering function are not (yet) eligible for approval at the European level. Electric power steering is only permitted up to a speed of 10 km/h, again subject to the requirement of the presence of a human driver capable of assuming control of the vehicle at all times. However, it is to be expected that the legal conditions for approval will be established on a step-by-step basis. For example, an amendment to the Vienna Convention was resolved upon last year: autonomous systems that can be shut down at any time, thereby enabling the driver to regain (decision-making) control over the vehicle, are now eligible for approval. In light of the foregoing, in the next few years the main focus will be on so-called “fully automated driving”, i.e. the precursor to autonomous driving, for example, the standard use of “motorway pilot systems”.

Liability

Pursuant to current legislation, who is liable if a vehicle in fully automated mode, for example on the Autobahn, is involved in an accident?

First of all, the vehicle (end) manufacturers and vehicle parts suppliers will likely come into consideration as potential targets for any claims, under the assumption that (pursuant to the legal situation throughout Europe) the vehicle in question failed to meet reasonable road safety standards. Given that fully automated vehicles are designed to ensure a greater degree of safety, the question arises of whether an automated system may be expected to be safer than a human driver, who, in the same situation and acting as may reasonably be expected of him in traffic, would not have been able to prevent the accident. Any such interpretation will generally be aimed at establishing liability of the manufacturer, who is responsible for the construction and fabrication of the vehicle as well as for providing instructions for the use of the automated system (for example, by providing a comprehensive operating manual).

In addition, the owner of the vehicle and his statutory motor liability insurance provider will (still) generally be liable. Finally, the driver will also be a potential target for any claims. The owner will generally be liable because he bears the operational risk with regard to the vehicle; he uses the vehicle for his own account and possesses the associated de facto power of disposition, which is a prerequisite for such use. Whether or not he participates in traffic as driver is not relevant. However, as soon as a defect in the automated software or system is the reason for the accident, which becomes all the more likely the more advanced the technical automation process becomes, the owner and the insurance provider will attempt to obtain indemnification through the vehicle manufacturer/parts supplier. The driver will also argue to the effect that the vehicle was being driven by the autonomous steering system and not by him. In practice, this issue is likely to be primarily a matter of evidence. Without technical equipment (or a re-attribution of the burden of proof to the manufacturer) it will be extremely difficult to ascertain whether a person caused the accident or the system and thus whether a product defect existed. Discussions exist as to whether data recorders or similar devices should be installed in the vehicles and examined after an accident, in order to ascertain when the human driver took over control of the vehicle.

However, it is also possible that the aforementioned liability and evidentiary issues may not arise at all: the Swedish vehicle manufacturer Volvo recently announced that it intends to assume “full liability” for accidents involving its self-driving vehicles. Whether this represents the first step towards a type of “warranty liability” on the part of vehicle manufacturers, and whether other vehicle manufacturers will follow suit, remains to be seen.