In March 2018, a pedestrian in Arizona was struck by a self-driving Uber vehicle during a vehicle test. An Arizona prosecutor recently found Uber not criminally liable for the incident, though little detail was given for the decision (see our blog post, here).

Once CAVs are on the roads and self-driving, liability is expected to shift away from the driver towards the CAV itself. Liability for accidents should, therefore, lie with manufacturers. This article explores such manufacturers’ liability for on-road CAV accidents under the current Australian regime .

CAVs and the product liability regime

CAV-related liability will arise against a potentially complex factual background involving a multi-part supply chain, the highly technical interplay of parts and processes, varying states of control between driver and vehicle and the likelihood of continuous software updates to CAVs post-purchase. However, Australia’s existing product liability regime has proven to be adaptable across many industries (including medical devices, car parts, consumer goods and pharmaceuticals).

A potential product liability claim may have several bases under current law. The cause of action pursued will be influenced by the injured party’s identity –  whether a driver / passenger or third party. A party injured in a CAV crash may argue:

• negligence: that a defect in or failure of the CAV breached a duty of care owed to the claimant by the manufacturer and / or supplier;
• breach of contract: that a CAV failed to operate in accordance with the terms of a contract between a consumer and manufacturer;
• safety defect (Australian Consumer Law (ACL)): that injuries were suffered due to the CAV having a ‘safety defect’. A defective goods action does not require a contractual relationship between the injured party and the manufacturer;
• breach of statutory guarantees (ACL): that a CAV was defective and therefore its supply breached statutory guarantees (eg vehicles are of ‘acceptable quality’ and are ‘reasonably fit’ for their disclosed purpose); and / or
• misleading or deceptive conduct (ACL): that a manufacturer and / or supplier’s representations to consumers (eg the CAV was safe for use) were misleading or deceptive.

The ACL-based claims demonstrate both the regime’s flexibility and certain challenges in bringing a CAV-related product liability claim.

(a) The ‘manufacturer’ and the ‘good’ 

‘Manufacturer’ has a broad meaning under the ACL, capturing the actual manufacturer, someone who holds themselves out as the manufacturer and the good’s importer. The term ‘good’ is similarly broad, and includes ‘vehicles’, ‘computer software’ and ‘any component part of, or accessory to, goods’. This arguably covers all aspects of the CAV, such as sensors, cameras, navigation software and data transmission systems.

Future car ownership and use norms will also play a role. In the increasingly popular pay-per-use model, a consumer may not be acquiring a good but instead receiving a service. The ACL captures service provision, with mirror statutory guarantees and misleading or deceptive conduct provisions.

(b) Who should have been driving?

Different levels of automation will require different levels of driver input. Establishing who should have been driving when a crash occurred will have significant implications for legal causation.

While the current legal regime could likely address such questions in a piecemeal way, through existing obligations regarding instructions for use and the usual principles of evidence, future regulation on fundamental issues such as ‘control’ will likely assist in consistent and predictable legal outcomes.

For example, future regulations may require that drivers be in control in high pedestrian areas, notwithstanding that a CAV is designed to function in those environments. The National Transport Commission (NTC) is considering this (see the NTC’s relevant policy paper, here). The question of control would fall away for ‘fully autonomous’ CAVs – although we query if a manufacturer would ever make such an unqualified statement.

(c) What is the defect?

Numerous factors specific to CAVs could conceivably cause accidents, including network outages, computer viruses, unpredictable behaviour by other road users and road maintenance conditions.

An accident may occur with no clear ‘defect’ and the CAV functioning exactly as intended. The Uber crash in Arizona appears to have been caused by the purposeful disabling of the ‘emergency braking manoeuvre’ system, disabled to reduce the potential for erratic vehicle behaviour during computer-controlled driving.

Separately, the ACL provides a defence to manufacturers where there was no defect at the time of supply. Consider the application of such a defence where, for example:

• a crash is caused by a temporary network failure; or
• a defect arises post-supply which can be rectified with a software or hardware upgrade.

A plaintiff may need to commence proceedings against a broad range of defendants to ensure recovery can be made against the defendant actually responsible. Large-scale changes to the legal liability and insurance regimes for CAVs may be necessary to make such proceedings more cost-effective.

(d) What instructions were given?

Instructions given to consumers by CAV manufacturers will be of paramount importance – especially those relating to maintenance, driver / CAV control sharing and driver behaviour during CAV-controlled driving. Consider, for example, a scenario where the manufacturer’s instructions require consumers to regularly install software updates to the CAV. If a crash was caused by a glitch which the software update would have corrected, questions arise around compliance with instructions and the steps taken by the manufacturer to ensure updates are made (eg should a manufacturer disable the CAV until updates have been installed?)

Conclusion

The Australian product liability regime seems largely able to handle the novel manufacturer liability claims which may arise from the widespread introduction of CAVs. Fundamental issues impacting liability, such as ‘control’, will no doubt be addressed as part of the safety risks associated with CAVs (see the NTC’s relevant discussion paper, here). As Courts identify issues over time, further legislative reform around the liability and insurance regimes will likely be desirable, taking into account any industry guidance and best practice developed.

For now, we continue to monitor, with great interest, how technological, regulatory and commercial progress will shape consumer consumption of the CAV.