Technology  Law 

Autonomous Cars: Liability for Damage

Autonomous cars are not only hitting the headlines of articles reporting on the progress achieved or partial failures in this area but are also subject to “serious” analyses dealing with technology, business and legal aspects. Autonomous cars are also considered in the broader context of individual mobility transformation, which simply refers to the transition from traditional car ownership to the sharing of cars with AI features, including other issues such as connectivity, use-based payments, customized insurance paid based on consumption, and telematics.

From a legal perspective, it is crucial to address liability for damage caused by an autonomous vehicle. We may argue to what extent the new Civil Code, which introduced certain changes in the area of liability, will serve as a sufficient legal basis for autonomous cars or whether it will be necessary to respond to the evolving reality by adopting new legislation.

In order to determine the accurate legal basis for liability, it will be critical to explicate the term ”autonomous car“, or more precisely to correctly classify the degree of autonomy based on available scale, such that some of the features used by the Civil Code with regard to obligations arising from delicts may be allocated to autonomous cars.

In connection with autonomous vehicles, possible elements of compensation for damage may primarily involve damage caused by the operation of transportation vehicles as the existing legal basis for liability for damage caused by the operation of vehicles. In view of the autonomous characteristics, liability for damage caused by a defective product or damage caused by a thing (which in both cases refers to the autonomous vehicle or its software), or damage from operational activity or even damage caused by an extremely dangerous operation (whereby the operation also refers to an autonomous vehicle) may also be taken into account.

The strict nature of the liability for damage caused by the operation of a transportation vehicle under Section 2927 of the Civil Code (i.e. release from liability is impossible when damage is caused by operation) corresponds to the requirement that liability shall be held by a person who benefits from the operation of such complex devices. The regulation also covers liability for so-called “internal coincidence”, i.e. technical or another defect on the vehicle which was impossible to detect despite making every effort. We may assume at this point that such technical defect may also relate to defective software in the control device. Liability is held by the operator, who does not necessarily have to be the vehicle’s driver. In the context of new car sharing platforms, determining the operator in these cases (including possible alternatives) will be another issue to be addressed by the application practice.

It looks likely that the character of autonomous cars will more frequently result in liability for damage caused by a defective product under Section 2939 of the Civil Code to both the purchaser (usually the vehicle operator) and third parties. Especially third parties may decide whether they will contact the operator or manufacturer, usually selecting the one offering a better chance for enforcing their rights – either due to solvency or the fact that liability was already proved in prior criminal or transgression proceedings.

No matter how other factual elements result in the need for defining liability in relation to autonomous machines and devices under certain circumstances, all issues concerning autonomous cars as a transportation vehicle are covered by stringent and widely-defined liability under Section 2927 of the Civil Code. These factual elements will rather relate to the field of artificial intelligence beyond the transport operation. Nevertheless, they may be relevant for autonomous cars where these vehicles cause damage in a manner other than operation as a transportation vehicle, such as in relation to connectivity as specified above (interconnection with other vehicles, infrastructure or Internet network).

Above, we have only provided a basic overview of potential issues to be brought regarding autonomous cars in relation to liability for damage. At first sight, the Civil Code provides a legal basis for addressing these issues. Nevertheless, further categorisation under specific factual elements will need additional interpretation. Simultaneously, it is also apparent that in the context of dynamic changes in the mobility sector, including not only autonomous cars but also various models of sharing them, the operation will give rise to a wide range of entirely new legal issues.

The article was published on the online magazine on 17 July 2018.

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