Australia: Australia and US diverge on road to legal liability for automated vehicles

Last Updated: 22 November 2016
Article by Lauren Scott

Sydney, 18 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, according to a new Clayton Utz report.

'Steering the course for future driverless vehicles regulation in Australia' critiques the regulatory reform pathway1 approved by Australia's Transport and Infrastructure Council earlier this month. The next generation of 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.

Clayton Utz partner Owen Hayford, one of the report's key authors, said the United States' Federal Department of Transportation had 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 the vehicle 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, " said Owen.

Owen said under the current proposals, the position for manufacturers was "mixed". "While manufacturers will take less responsibility for the actions of the vehicle, they will still have to submit a safety case for the vehicle to the Australian regulator, even though the vehicle can only operate with a human driver. However manufacturers will probably consider this a small price to pay for the Australian position on liability."

Owen said the initial rationale for the Transport and Infrastructure Council's proposal of a new national safety assurance regime for automated vehicles was the absence of a licensed driver with demonstrated minimum driving competencies. 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," said Owen, adding that creating a new legal framework for automated vehicles was not an easy exercise.

"The regulatory environment for the use of motor vehicles in Australia is complex. The National Transport Commission2 has already undertaken some valuable work in identifying regulatory barriers for automated vehicles and options to address these. Our latest report and our 'Driving into the future: Regulating driverless vehicles in Australia' (PDF 11.8MB) report seek to build on that work and identify some of the key areas that legislators and regulators can start looking at now to ensure a clear and consistent approach to issues such as liability, access to data, cybersecurity and, at a Federal level, minimum safety standards."

Footnotes

1 National Transport Commission policy paper, "Regulatory reforms for automated road vehicles", November 2016

2 National Transport Commission discussion paper 'Regulatory Options for Automated Vehicles', May 2016 B

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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