Australia and US diverge on road to legal liability for driverless vehicles

First published 19 November 2016

Australia's Transport Ministers are proposing a different road to the US in allocating legal responsibility for the next generation of automated vehicles - with the Australian position favouring manufacturers over drivers.

The next generation of automated vehicles (conditionally automated vehicles) is expected to be commercially available around 2020 and will allow the human driver to take his or her eyes off the road for extended periods of time. 

The United States' Federal Department of Transportation has gone down the road of making the entity responsible for the automated driving system - most likely, the manufacturer - legally responsible for road rule infringements caused by these vehicles once the automated system assumes responsibility for watching the road. The Australian Transport Ministers, however, think legal responsibility should lie with the human driver. 

By making the driver responsible for the vehicle, regardless of the fact the underlying driving system is automated, the driver rather than the manufacturer is more likely to be held liable for any property damage or personal injury the vehicle causes. However this may not be the case where a failure of the automated driving system, for example, is a significant contributing factor.  It is highly likely that a number of factors will be relevant to the ultimate determination of liability, which means questions of liability and access to compensation for victims won't be clear cut.

The Transport and Infrastructure Council has also determined that a new national safety assurance regime should be developed for automated vehicles, with an initial focus on conditionally automated vehicles. The initial rationale for this new national safety assurance regime was the absence of a licensed driver with demonstrated minimum driving competencies. Accordingly, it was previously proposed that any new safety assurance regime would only apply to highly and fully automated vehicles that don't require a human driver. However, the Council is now proposing that such a regime focus on vehicles that will still require a licensed human driver to take back control of the vehicle when requested.

This change in position perhaps reflects an sense of unease with the idea that an automated vehicle driving system should be wholly responsible for watching the road until such systems prove themselves to be safe.

So the position for manufacturers is mixed. While manufacturers will take less responsibility for the actions of the vehicle, they will have to submit a safety case for the vehicle to the Australian regulator even though the vehicle can only operate with a human driver.

The approval of the NTC's recommendations is a significant step forward for Australia in creating a regulatory framework that will support the timely adoption of increasingly automated vehicles.

Aside from the Americans, I am not aware of any nation that is advanced as Australia in developing a suitable regulatory framework.

The divergence of views between the Australian and American regulators on the question of who is responsible for complying with road rules in the case of the next generation of automated vehicles (conditionally automated) is an interesting development. Manufacturers will be pleased with this development from a liability perspective, and will probably consider the obligation to submit a safety case to the regulator for these vehicles to be a small price to pay. But don't be surprised if the Australian and American view reconverge at a future point.