Driverless cars: Who’s responsible if my self-driving car is caught speeding?

First published 28 May 2017

This is one of the many questions arising from driverless vehicles that road transport regulators are presently grappling with. 

Australian road rules apply to “drivers”. The rules require “the driver” to obey the speed limit, keep to the left, stop at a red traffic light, and so on. So who is the driver of a vehicle that can drive itself?

The driver changes as vehicles become increasingly automated

The most recognised international standard for automated vehicles refers to the current generation of self-driving vehicles, such as the Tesla Model S, as level 2 or partially automated vehicles. The vehicle’s automated driving system can control the vehicle’s speed and steering, but the operator of the vehicle must sit in the driver’s seat, and conduct the balance of the driving task, i.e. watch the road and be ready to respond appropriately to objects and events. Accordingly, for level 2 partially automated vehicles, it is the operator of the vehicle that is considered to be the driver for the purposes of our road rules.

But the next generation of self-driving cars will soon be offered for sale – perhaps later this year or next year. For this next generation, referred to as level 3 or conditionally automated vehicles, the automated driving system will be responsible for conducting the entire “dynamic driving task”, including watching the road and responding appropriately to objects and events. The operator of the vehicle will still perform the “strategic” aspect of the driving task, such as determining destinations and waypoints. The operator of the vehicle will also need to be “fallback-ready”, i.e. receptive to requests to intervene from the automated driving system, or to performance-relevant system failures in the vehicle, and ready to respond appropriately. Even so, it will be possible for the operator to take his or her eyes off the road for extended periods of time. Perhaps the operator will be able to read a book or perform other non-driving tasks whilst still being fallback-ready? Will the operator of a level 3 conditionally automated vehicle be considered to be the driver for the purposes of our road rules, or should the automated driving system be considered to be the driver?

In due course, we expect to have level 4 highly automated vehicles that conduct the entire dynamic driving task without any expectation that the operator will respond to requests to intervene. However, like earlier generations, level 4 highly automated vehicles will only able to operate in automated mode in their “operational design domain” i.e. particular road environments (such as dual carriage motorways, but not busy city roads with pedestrians and cyclists). Ultimately, we expect to have level 5 fully automated vehicles that can operate without any expectation that the operator will respond to requests to intervene in all driving environments.

Level 4 and 5 vehicles will also be able to operate without the need for anyone to be in the vehicle. For these vehicles, it is the vehicle’s automated driving system that will conduct the “dynamic driving task”, i.e. control the vehicle’s speed and steering, and monitor the driving environment and respond appropriately to events and objects. Accordingly, for these vehicles, there is general consensus among regulators that the automated driving system is doing the driving and is therefore “the driver” of the vehicle. 

The area of debate – who is driver of a level 3 vehicle?

The main area of debate amongst regulators is: who is the driver of a level 3 vehicle and, hence, responsible for ensuring the vehicle complies with the road rules? The United States Department of Transport has suggested that it is the vehicle’s automated driving system, until such time as the fallback-ready user actually intervenes.  This would render the automated driving system responsible for complying with speed limits and other traffic laws. Australia’s National Transport Commission (NTC), on the other hand, has suggest that the fallback-ready user should be considered to be the driver, even which the automated driving system is conducting the dynamic driving task. This would render the fallback-ready user liable for the speeding fine, even though he or she was not responsible for monitoring the driving environment at the time the speeding infringement occurred.

Can an automated driving system be held responsible for complying with traffic laws?

Putting the level 3 debate to one side for the moment, what does it even mean to say the automated driving system is responsible for complying with traffic laws? The automated driving system is a computer. How can a computer be held legally responsible for compliance with traffic laws? The NTC has suggested that the legislated meaning of driver could be expanded to include the legal entity responsible for the automated driving system. This could be one of a number of possible legal entities – the registered owner of the vehicle, the manufacturer of the vehicle, or the service provider that maintains the automated driving system.

It’s also possible that different components of the automated driving system will be supplied by different suppliers, and that ultimate responsibility for the safe operation of the system will be shared between a number of different legal entities. But shared legal responsibility for compliance with traffic laws would be confusing and uncertain, not least for the police – who would they issue the infringement notice to?

A new approach – make the “vehicle operator” responsible for ensuring the vehicle complies with the road rules

I believe a new concept needs to be introduced into our road rules – the concept of the “vehicle operator”. The vehicle operator would be defined as the person (including a corporation) that operates the vehicle. A person would operate a vehicle if the person drives the vehicle, or causes an automated driving system to drive the vehicle.

Driving would be defined as the performance of the dynamic driving task, i.e. steering, speed control and object and event detection and response. A person would not cause an automated driving system to drive a vehicle by reason only that the person performs the strategic driving function, i.e. selection of destination and waypoints. Accordingly, the vehicle operator of a level 4 or level 5 driverless taxi or rideshare vehicle would be the person or company that turns the automated driving system on and allows the vehicle to operate on public roads. The fact that a user asks the vehicle to pick them up, and then take them to a destination, would not make the user of the driverless vehicle the vehicle operator for the purposes of ensuring the vehicle complies with the road rules. Similarly, a person would not cause an automated driving system to drive a vehicle, by reason only that the person was involved in the development of the automated driving system. 

Road rules that are presently expressed to apply to a driver would be amended so that they instead apply to the vehicle, and a new rule would be introduced which provides that if a rule is expressed to apply to a vehicle, the vehicle operator must ensure that the vehicle complies with the rule. (It is appropriate for rules to be expressed to apply to a vehicle, rather than a vehicle operator, because they often refer to the position of the vehicle or an action of the vehicle, and the vehicle operator may not be riding in the vehicle when we have level 4 and level 5 automated vehicles.) 

By way of example, rule 67(1) would be amended as follows: A driver vehicle at an intersection with a stop sign or stop line, but without traffic lights, must stop and give way in accordance with this rule. 

By adopting this approach, the vehicle operator would become legally responsible under the road rules for ensuring that the vehicle complies with the road rules. If the vehicle is level 3 or above, and is deployed by a corporate ride share provider, the ride share provider would be the vehicle operator (until such time as the fallback-ready user becomes the driver, in the case of level 3 only). For level 2 and below, the human driver would be the vehicle operator and, hence, responsible for ensuring the vehicle complies with the road rules, even when the automated driving system is assisting with aspects of the dynamic driving task.

Vehicle operators will have a remedy against the manufacturer if the vehicle is defective

If a vehicle fails to comply with the road rules because of a defect in the automated driving system, the purchaser of the vehicle will almost certainly a legal claim against the vehicle manufacturer. In most cases, the vehicle operator will be the purchaser of the vehicle and able to make a claim against the manufacturer, or the vehicle operator will be able to make a claim against the vehicle manufacturer through the purchaser of the vehicle. 

The police can pursue the registered operator – just like fixed camera speeding fines

This approach would certainly simplify things for the police. Similar to the current situation for fixed camera speeding and red light fines, the police could simply issue the infringement notice to the registered operator of the vehicle. The registered operator would then be responsible for paying the fine (and incurring any demerit points), unless the registered operator can demonstrate that someone else was “operating” the vehicle at the time of the offence. 

The vehicle operator can pursue any remedies it has against the manufacturer

This approach would also enable the vehicle operator to pursue any claims it might have against the vehicle manufacturer if the vehicle is defective or otherwise fails to live up to the manufacturer’s marketing claims. Indeed, some vehicle manufacturers have already suggested that they will accept liability for traffic offences and accidents caused by their vehicles when operating in automated driving mode. I expect we will find that that these manufacturers will only accept liability to the purchaser of the vehicle, and not to third parties that are injured or otherwise suffer loss as a result of a failure of the vehicle. 

The vehicle manufacturer could, in turn, pursue any legal claims it may have against a component supplier if the defect in the automated driving system was caused by a defect in the component supplied by that supplier.

Want to learn more?

If you’d like to learn more about the approach I am suggesting, check out my submission to the National Transport Commission on this issue. You can access it via this link.