Posted on 08 Mar. 2016
Who’s at fault in an accident with a driverless car?
By Slater and Gordon
While the law adapts to Uber as the latest innovation in getting from A to B, it appears increasingly likely that a far more significant change in transportation is on the horizon – driverless cars.
There are varying timelines set out regarding the introduction of this exciting technology, the US state of California recently introduced a bill that would legalise autonomous vehicles without human drivers for the first time in the US, while others are speculating we could be entering the driverless car age sometime around 2020.
The technology itself reads as if directly lifted from a sci-fi novel – multiple cameras and sensors, adaptive cruise control, automatic lane changing and software which learns how to respond and adapt to rapidly changing environments. I cannot help but wonder if the software is likely to “learn” that the McDonalds drive-through is a necessary detour when driving 19-year-olds at 3am.
The development of this technology finds support and encouragement from a number of stakeholders: car companies, ride share companies; governments keen to ease congestion and tollway firms. The South Australian Government last year introduced legislation to permit on road trials.
In most Australian states and territories a person is injured in a motor vehicle accident through the course of driving – which would include driverless driving as there is propulsion of the vehicle – they may not bring a claim for damages unless they can establish the negligence of another party. When negligence is established, if the person meets the ‘serious injury’ threshold, their potential claim for common law damages includes pain & suffering, loss of enjoyment of life; past economic loss and future economic loss.
Where there is no negligence, an injured person is still entitled to their reasonable medical expenses, loss of earnings and lump sum compensation for impairment. The compensation where someone has sustained a serious injury due to the negligence of another party is much more generous, as it should be to account for the significant impact on the individual’s life due to the negligence of another person.
Driverless car technology seems to be developing in a manner where the car will operate without drivers for particular sections of the journey. This, in theory, allows the driver to split their attention and do other things during their commute.
This of course begs the question: if there is an accident, who is the negligent party?
Occasionally people are injured on the road due to a vehicle’s technical malfunction, in which case a claim under the Consumer Law Act may be available to them. But the reality is that more often than not people are injured due to the negligence of another driver. Human error is a factor we would all like to see removed from our roads.
If it follows that driverless cars create a utopian landscape of “accidentless” roads, then the legal issues as they relate to the possible personal injury damages would be irrelevant, because there would be no claims!
If it follows that driverless cars reduce accidents but don’t eliminate them and, in fact, create a new class of accidents due to malfunction or improper use, then the question of negligence becomes more complicated.
Will the law need to adapt to create a non-delegable duty? Meaning, even when your hands are off the wheel you are responsible? Some may argue that defeats the purpose of the technology. Perhaps the test of negligence will become that of what a reasonable person in the position of the driver would do.
One thing is certain and that is the liability of the manufactures becomes even more significant, and there’s no doubt the manufactures themselves will be eager to limit their liability.
The law as well as road users will have a lot of adapting to do.
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