Automated Driving and Legal Liability

By Yasutomo Wakiyama

1. Introduction

The fatal crash in May last year that involved a Tesla Motors vehicle equipped with an automated driving function is still fresh in our memory.

Meanwhile, media outlets have reported last December’s announcement by Tokio Marine Holdings & Nichido Fire Insurance Co. that they will offer a special automobile insurance provision to policyholders free of charge from April this year that covers accidents occurring while a vehicle is under automated driving.

In this way, many issues regarding automated driving are being raised, but I would like to discuss the effect that automated driving has on legal liability for traffic accidents.

2. Automated Driving Levels

First, there are different levels of automated driving systems and the definition of the levels are currently in flux, but certain definitions have been prepared by the United States’ National Highway Traffic Safety Administration (NHTSA) and in Japan’s Public-Private ITS Initiative/Roadmaps.

Here I will introduce the definitions contained in the Public-Private ITS Initiative/Roadmap, which were also used in a report by the General Insurance Association of Japan (GIAJ) in June last year.

Level 1 (Stand-alone systems)
An acceleration, steering or control operation is performed by the system.

Level 2 (Composite systems)
Multiple acceleration, steering or control operations are performed by the system at the same time.

Level 3 (Advanced systems)
The system performs all of the acceleration, steering and control operations, and the driver only acts when required by the system.

Level 4 (Fully-automated driving)
The system performs all of the acceleration, steering and control operations, and the driver is not involved.

In Japan, it is said that Level 2 systems will be realized as early as 2018 (some manufacturers are already selling vehicles with automated driving technology that corresponds with Level 2).

3. Effect on legal liability for traffic accidents

(1) Driver’s liability

(a) Level 1 and Level 2 can be said to realize automated driving by a system, but even during automated driving, at all times the driver bears the criminal responsibility associated with driving a vehicle, such as safe driving and avoiding accidents (referred to below as the “driving responsibility”). Therefore, if civil liability is pursued against the driver in the case of a traffic accident, there is basically no contention with the current position that pursuing liability based on Article 3 of the Automobile Liability Security Act (the “ALS Act”) and Article 709 of the Civil Code is possible.

(b) However, concerning Level 3, as the system performs all acceleration, steering and control operations and the automated driving becomes the responsibility of the system, it is assumed that the driving responsibility of the driver under the Road Traffic Act will be exempted to a certain extent. Thus, the liability for damages concerning an accident that occurs while the driver’s driving responsibility is exempted becomes a problem.
On this point, because the system transfers driving responsibility to the driver when the system’s functional limitations are reached and the driver can intervene in the driving at any time including during automated driving, the driver’s “operational control” would be recognized as sufficient enough to be an “operator” under Article 3 of the ALS Act. Further, because we can also resort to the driver’s negligence, the existing disposition of pursuing liability based on Article 3 of the ALS Act and Article 709 of the Civil Code is possible (per the GIAJ Report).

(c) On the other hand, regarding Level 4, because all driving is performed by the system without any involvement from the driver, it can be thought that pursuing conventional liability for damages is difficult. Therefore, on top of drastic revision of laws and regulations relating to vehicles, it is necessary to debate and organize the future system.

(2) Diversification of liability and complication of negligence
In the case of an accident during automated driving, there is the problem of not only the driver’s liability but also the liability of the vehicle manufacturer and software developer, and there is the possibility of the relationship of liabilities becoming complicated.

It is assumed that in the future, in addition to pursing the driver’s liability for damages under the ALS Act and Civil Code, the victim will also pursue the manufacturer’s liability for damages under the Product Liability Act, and the apportionment of liability between the offending parties will become a problem.

(3) Diversification of accident causes and difficulty of analysis
As many factors including system defects and faults, traffic infrastructure defects and faults, and cyber-attacks are conceivable causes of automated driving accidents, it seems that accident analysis will become more difficult and elaborate analysis using dashboard cameras and event data recorders will become necessary.

4. Conclusion

As we have reached the era where Level 4 fully-automated driving has become realistic, it is imperative for the legal profession and insurance industry to establish dispute resolution and indemnity systems that are adapted to the era, and paying close attention to future domestic and international trends in automated driving seems necessary.

(Translated from the original Japanese)