Legal theories of liability are usually based on allocating responsibility for loss or damage to a legal person who is responsible for the act or omission that has resulted in that loss or damage. But how do we apply these theories where an automated device is responsible for the relevant act or omission?
Perhaps one of the most high-profile debates surrounding liability for IoT devices arises in the context of automated or “driverless” vehicles. In theory, an increasing level of vehicle automation should reduce the accident rate on the roads by eliminating human fallibility. However, it is extremely unlikely that accidents will be eliminated altogether. So who should be responsible when an automated vehicle causes an accident that injures another road user or causes damage to third party property?
There are a range of possibilities for who may have contributed to an accident between two automated vehicles and may therefore potentially share in the fault:
There is also a question over what role regulators and standards bodies should play. For example, should road traffic authorities be responsible for quality-testing vehicle automation systems before they are allowed on the road in order to confirm that they are able to follow local road rules properly? And, if so, what responsibility should they have if they approve a system that turns out to be defective?
These are challenging issues. However, they are not issues that we can ignore for much longer, as they are no longer in the realm of the hypothetical. As of June 2016, Google had 58 self-driving cars on public roads in the United States. In Florida, in May 2016, the driver of a Tesla Model S Car (which includes an Autopilot feature) was killed after colliding with a truck, sparking a significant media debate about safety and other issues associated with self-driving systems. In light of this, Australian regulators are currently investigating options for effectively managing liability issues in order to encourage the further development of the automated vehicle market in Australia.
Potential regulatory reform
In November 2016, the National Transport Commission released a policy paper on automated vehicles identifying existing legal and regulatory barriers and setting out recommendations for a regulatory reform program to enable a graduated transition towards a fully automated driving environment. The NTC’s recommendations, which have since been approved by the Transport Infrastructure Council, include:
- as a first step, confirmation by the Transport Infrastructure Council of its current policy position that for partially and conditionally automated vehicles the human driver will be attributed with full legal responsibility for motor vehicle accidents;
- in the short term, a focus on enabling an increased number of on-road trials of automated vehicles, supported by the development of national field testing guidelines and a review of existing state and territory exemption powers to accommodate those trials;
- in the medium term, the implementation of a complete regulatory framework to support the large-scale roll-out of automated vehicles, which would encompass the implementation of a national safety assurance regime to clarify product standards and liability levels for manufacturers, and a range of legislative reforms (including a review of compulsory third party insurance schemes) to ensure appropriate cover for accidents involving automated vehicles; and
- in the longer term, the development of a regime for government access to automated vehicle data, which (amongst other things) is expected to play a key role in ascertaining fault assignment and liability, and ongoing engagement with international bodies for the development of global standards for automated vehicles.
This type of proactive reform strategy will be key to ensuring that IoT technologies continue to flourish in Australia.
This is an edited extract of The Rise of the Machines: A Guide to the IoT. For a copy of the publication, please contact Michael Swinson.