Autonomous Intelligent Cars on the European intersection of liability and privacy
Less harmonized: framework on liability for motor vehicles
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Less harmonized: framework on liability for motor vehiclesDespite the EC’s attempt in 2002,42 there is currently no framework in place harmonizing rules on liability for damages following from incidents with motor vehicles in general, which is thus individually addressed by the legal regimes of the Member States. The European Commission has issued six Directives on Insurance for motor vehicles, of which one is still in force to date.43 The Motor Insurance Directive44 regulates civil liability insurance for motor vehicles throughout the EU Member States, without setting material norms for determining and apportioning liability.
In 1985 the French bill “tendant à l’amélioration de la situation des victimes d’accidents de la circulation et à l’accélération des procédures d’indemnisation", the Loi Badinter, was enacted. Its objectives are to compensate the victims of all traffic accidents in which a motor vehicle is involved, to reduce the amount of procedures before court and the large amount of ‘unfair’ transactions between insurers of motorists and victims of traffic accidents.45 The Loi Badinter installed a very strict no-fault liability regime for drivers of motor vehicles which are involved in traffic accidents, obliging the drivers to compensate damages suffered by all “victims other than drivers”.46 Article 3 reads: “Les victimes hormis les conducteurs […] sont indemnisées des dommages résultant des atteintes à leur personne qu’elles ont subis, sans que puisse leur être opposée leur propre faute”. One exception to the driver’s liability is formulated: “à l ’exception de leur faute inexcusable si elle a été la cause exclusive de l’accident”, only in case an accident is caused by the inexcusable fault of the victim, the driver does not have to compensate the damages. The Loi Badinter furthermore provides that if victims are younger than 16 years of age, older than 70 or at least 80% invalidated, they are to receive full compensation. One of the major rationales for the French legislator to implement this strict liability system for motorists, it is stated to be that it is often hard, if not impossible to establish the exact cause of an accident, and the level to which a conduct or negligence of the victim had contributed to the accident.47 The rules of the Loi Badinter have been explained by and further developed in case law. It became clear that also vehicles that are not actively involved in an accident, for instance parked cars,48 or cars not involved in the accident at all, which were in the proximity of the accident,49 may fall under its scope, which Tunc describes as “any kind of relation between the car and the accident is sufficient to create the insurers duty”50 to compensate damages. The inexcusable fault of a victim, limiting the drivers’ liability is very narrowly construed: only if the driver can prove that a victim intentionally caused the accident and the damages related thereto, the driver can escape from liability. For instance the case in which a victim who wore dark clothes at night, who was walking in the middle of the road, drunk, trying to fetch a lift home, and who was eventually caught by a car, still led to the liability of the driver. Tunc observes that “For practical purposes, the exception to automatic protection of non-driver victims has been eliminated from the law”.51 Under the French liability regime, one may conclude without much doubt that the driver of the Autonomous Intelligent Car can be held liable for the damages done to the cyclists and their bikes, albeit their disobeying the traffic rules.
In the Netherlands, the Wegenverkeerswet (WVW) provides rules for assessing liability for damages caused by motor vehicles. Article 185 WVW installed a (semi) strict-liability system, which states that the owner or keeper of a motor vehicle can be held liable for damages to goods and persons, other than those inside a motor vehicle, caused by an accident in which a motor vehicle is involved, while driving on a public road. Compensation for damages suffered by victims inside a motor vehicle is governed by the general rules on liability, stated in article 6:162 of the Dutch Civil Code. Keepers or owners of motor vehicles can escape from liability proving force majeure: occurrences of which not the driver but rather the victim, or a third party must be accounted for, causing the accident – and the damages following from it. Force majeure is not easily accepted: the driver of a motor vehicle must prove that he cannot be blamed at all, and that the accident was caused solely by “improbable and unforeseeable behaviour of others”, which the driver could not reasonably take into account. In that respect, it must be noted that drivers of motor vehicles have to anticipate the incautious behaviour of other traffic participants.52 The bus driver who hit a bicyclist did not reasonably need to expect the behaviour of the cyclist ignoring a red traffic light, while the chauffeur drove slowly (30-35 km/h), passing a green traffic light.53 Should the driver not be able to prove force majeure, the Dutch system sets strict rules on the apportionment of damages to be paid to victims of accidents in which motor vehicles are involved. At least 50% of the damages needs to be compensated by the owners or keepers of motor vehicles. In the apportionment and the allocation of damages amongst the parties involved in the accident, judges take into account if, and to what extent, the ‘own fault’ of the victim contributed to the accident. Percentages of ‘causality’ between the motorists and victim are first taken into account, assessing to which extent behaviour of both parties contributed to the origination of the accident in an objective manner, which can afterwards be ‘corrected’ if reasonableness requires so. Case law of the Supreme Court of the Netherlands provides that the ‘correction for reasonableness’ implicates that whenever a victim is younger than 14 years of age, he will receive 100% compensation, unless intent or gross recklessness at the victims’ side can be proved.54 For victims older than 14, the Supreme Court formulated the 50%-rule: reasonableness requires that even when the victim contributed to the accident (but not in such way that this would constitute force majeure), at least 50% of the damages are to be compensated by the motorist. The ‘Betriebsgefahr’, or dangers involved in and inherent to the operation of a motor vehicle on the public road forms the rationale of this rule.55 For the other 50% of the damages, first the causality is assessed, which can in turn be corrected for the sake of reasonableness. Considering the scenario, it can be predicted that at least 50% of the damages of the bicyclists must be remunerated by the AIC-driver, given the current WVW-regime, for there is ‘Betriebsgefahr’ involved in operating motorised vehicles. Force majeure will be hard to prove, since the case suggests some fatigue at the side of the driver, that he could have noticed the cyclists, and that not only the victims are to blame for causing the accident. It can be objectivised that also the cyclists had part in causing the accident, for they ignored the traffic rules, and crossed a red light. It is hard to predict the outcome of the assessment of a reasonableness correction, although it could very well be that also the cyclists have to take their share in compensating the damages.
In the United Kingdom, the liability regime for damage inflicted by motor vehicles is based on negligence rules. There is no strict-liability regime in place, although the standard of care required from drivers of motor vehicles is rather high. Case law explains that a driver losing his conscience without his fault was acting negligently,56 and so did the driver whose brakes failed, while this failure could not have been foreseen.57 However, victims of accidents caused by motor vehicles have to prove that the drivers were at fault, that is: acting negligently. There is one rule of statutory duty that sets to some degree a strict liability for drivers of motor vehicles approaching a crossing in the road: “The driver of every vehicle approaching a crossing shall, unless he can see that there is no passenger thereon, proceed at such speed as to be able if necessary to stop before reaching such crossing”.58 A defence that a driver has in this respect is force majeure. Drivers being held liable motivated with claims concerning negligence at their side, may defend themselves by stating contributory negligence of victims, regardless their age.59 The English system differs significantly from most other EU regimes on liability for motor vehicles. In the first place, victims have to prove the negligent conduct of the driver who caused them harm, whereas in for instance the Netherlands and France there is a strict/no fault liability regime for either owners/keepers of motor vehicles, or drivers of motor vehicles involved in an accident. Furthermore, English drivers may invoke a contributory negligence claim, which may – in theory – free them from liability, while this is (almost) impossible in France, and in the Netherlands this may lead to a maximal reduction of 50% of the liability of owners/keepers of motor vehicles causing damage to non-motorised traffic participants. It cannot be easily predicted how the English system would qualify matters as explicated in paragraph 3.1. The three bicyclists have to prove that the driver was acting negligently – however that shall be hard for them to prove. The driver may rely on the reported technical state of his vehicle. It can be in his favour to show that his vehicle passed all necessary tests and certifications, and that the defect in the sensory software was beyond his control. Furthermore, the driver could argue contributory negligence of the cyclists, whose behaviour was contrary to traffic rules after all.
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