Autonomous Intelligent Cars on the European intersection of liability and privacy
Civil liability for damages caused by Autonomous Intelligent Cars
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- Harmonized framework on Product Liability
- Addressing the questions under the Product Liability Directive
Civil liability for damages caused by Autonomous Intelligent Cars
On 25 July 1985 the EEC issued the Directive on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (Product Liability Directive, PLD), which has been amended once - by Directive 1999/34/EC. The PLD serves both economic and social goals. The EEC considered on the one hand that harmonization of product liability law contributes to both the correct functioning of the internal market, thus enabling the creation of a “level playing field” for businesses.21 On the other hand, it sees to the effective protection of consumers. It thus seeks to provide a fair apportionment of damages between manufacturers and persons suffering damages from defective, unsafe, products. The PLD is stated to be the “result of a complex balancing of interests, […] those interests include guaranteeing that competition will not be distorted, facilitating the trade within the common market, consumer protection ensuring the sound administration of justice”.22 The PLD provides a set of rules installing a no-fault23 liability regime for producers, creating rights for consumers which cannot be limited or waived,24 to seek compensation for damages caused to people and goods by defective products.25 The regime operates alongside and without prejudice to national regulations on either contractual or non-contractual liability, “in so far as these provisions also serve to attain the objective of effective protection of consumers”.26 Its objective is to create a one-stop-shop for consumers who have suffered damages caused by industrially produced movable goods, including electricity,27 that are defective. Defective are those products lacking a certain amount of safety “which the public at large is entitled to expect, taking all circumstances into account, including (a) the presentation of the product; (b) the use to which it would reasonable be expected that the product would be put”, and “(c) the time when the product was put into circulation”.28 As long as consumers can prove the defect, the damage and the causal relationship between those two criteria,29 compensation is to be sought not only from the actual producer, but also from amongst others the importer, the manufacturer of raw material and components and the end-supplier of the defective product.30 The losses covered for in the PLD may consist in damage caused by death or personal injuries, and damage to items intended and/or used for private consumption by the injured person, other than the defective product itself “with a lower threshold of 500 ECU”31 (Euro). However, whenever damages are caused by both a defective product and a fault of the person suffering damage (defined in the considerations as “contributory negligence”), this may lead to reduction or disallowance of liability of the producer. Liability for producers may be exonerated, when for instance “it is probable that the defect which caused the damage did not exist at the time when the product was put into circulation or that this defect came into being afterwards”.32 Furthermore, the PLD states33 that a producer cannot be held liable when “the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of the defect to be discovered”.34 In the context of this paper, it is relevant to elaborate a bit further on this ‘state of the art’-defence. It can be questioned what is considered to form the “state of scientific and technological knowledge” that must be taken into account in assessing the discoverability of defects. Stapleton suggests three categories, of: a) defects – absolutely – undiscoverable given the state of the art; b) defects that were discoverable, however only by extraordinary means; and c) defects discoverable by reasonable, ordinary means.35 Stapleton furthermore argues that it would be fair to adhere to the third category, which would be in line with the implemented text of 7(e) PLD in the United Kingdom.36 This provision reads: “…that the state of scientific and technical knowledge at the relevant time was not such that a producer of products […] might be expected to have discovered the defect if it had existed in his products while they were under his control”. The ECJ concluded that the wording of the UK-implementation was not manifestly contrary to the Directive, but that the “argument [of the UK, (RW)] that such national provision permits account to be taken of the subjective knowledge of a producer taking reasonable care, having regard to the standard precautions taken in the industrial sector in question, selectively stresses particular terms used in the provision without demonstrating that the general legal context of the provision at issue fails effectively to secure full application of the directive.”37 The ECJ points out that a producer relying on the 7(e)-defence, must prove that the objective, most advanced state of the art, not limited to the industrial sector concerned, was not “such as to enable the existence of the defect to be discovered”,38 as long as that knowledge had been accessible at the time when the defective product was put into circulation. Despite this judgment, there still is no consensus amongst EU Member States on the application of the state of the art defence, concluded the European Commission in 2011.39 Some member states even argue in favour of removing this liability exclusion clause from the Directive, for that would lead to a better functioning of the internal market. Industry and insurance companies point out that when such should happen, this would have a direct negative impact on the speed of innovation and the development of new products, and lead to higher insurance costs.40
Defective product The scenario sketched in paragraph 3.1 provides that there was a failed update to fix the error in the software processing data from sensors placed on the exterior of the car, which measure the distance between the car and (speed, distance and direction of) other objects surrounding it. This sensory information provides input to a mechanism able to interfere with the systems controlling the direction and the speed of the car on the road, which are able to actuate an emergency-stop of the car, in case objects get into a too close range. Assuming that this is one of the key safety systems of Autonomous Intelligent Cars, the question can be addressed whether or not the AIC was at the time of the accident lacking the amount of safety “which the public at a large is entitled to expect”. Although the scenario does not provide much detailed information on the actual ‘defect’ and other relevant circumstances, one may assume that “the public at a large” should expect an accurate link between systems processing sensory information on speed, distance and direction of other objects on the road and the systems controlling the speed and direction of the car itself. And, if such connection fails, that the driver of a car is properly informed of the existing safety failures. Should that not be the case, victims may be able to prove the existence of a defective product. Damage: personal injury or damage to private property The scenario draws that the accident led to both personal injuries and damage to private property, which are the (only) two categories of damage that may be compensated on behalf of the Product Liability Directive. One should note that for instance compensation for damage to the AIC itself cannot be sought from the manufacturer based on the PLD. Furthermore, no damages have to be paid below the amount of € 500,-. Causal relationship The Product Liability Directive does not provide a definition of causality, which is (thus) left to the Member States. Various concepts of causation are used, although in every jurisdiction a “condition sine qua non” (CSQN)-test is applied to establish links between conduct or cause and damage.41 The CSQN-test asks the question whether or not damage would also have occurred without a certain occurrence, being for instance a conduct or negligence. In ‘our’ case, a CSQN-test may be formulated as follows: would the damages to the cyclists and their bikes also have occurred without the defect in the sensory information processing software in the AIC? Given for instance the circumstance that the cyclists ignored a red traffic light – which in case they didn’t may well have prevented the accident, and the suggested fatigue of the driver who may otherwise have had interfered with the self-driving mechanism, this may not be established easily. Contributory negligence Linked to the causality question, the PLD provides that liability of the producer may be reduced or disallowed when the injured person contributed to the causation of damages. The facts that the cyclists didn’t obey the traffic rules and the driver’s condition, may well constitute a reason for at least the limitation of liability of the producer. Defences It is questionable if for instance the “state of the art”-defence would lead to an escape from liability of the producer – should it be established. The producer of the AIC depicted in the 3.1-scenario must then prove that the state of the “scientific and technical knowledge was not as such as to enable the existence of the defect to be discovered”. He may state that the objective state of the art could not reasonably foresee the existence of the error, and that as soon as this error surfaced, he provided a “bug fix” – which was applied to the car. In order to provide some appropriate guidelines for answering the proposed questions, more information would be required on the exact (mal)functioning of the initial software, the ‘bug fix’, the behaviour of the driver influencing the behaviour of the AIC, and the behaviour of the unfortunate cyclists, to draw more accurate conclusions as to the causal relationship between the defect and the damages, contributory negligence and the state of the art defence. These kinds of factual information are to date not easily (re)constructed after an accident took place – but may be in the future. See for example the possibilities a ‘black box’ could offer in paragraph 4.
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