With the advent of the self-driving car, the machine will increasingly participate in traffic in the future without human drivers having any influence on it. This development requires a new view of road traffic law and civil liability law.
Our associate Jeanette Limpens has therefore published an article in liability and insurance law journal VAST Magazine in which she investigates to what extent the use of the self-driving car is permissible under existing law and what consequences liability law attaches to the traffic errors of the self-driving car. This article is only available in Dutch. Below you may find a brief overview of its conclusions in English.
English summary
In this contribution I investigated to what extent the use of the self-driving car is permissible under existing law and what consequences liability law attaches to the traffic errors of the self-driving car.
It is important to note that different degrees of self-driving cars exist. The SAE level 3 marks a turning point from the risk of human error, to the risk of traffic errors of the self-driving car. This type of self-driving car has the following influence on road traffic law and civil liability law.
Road traffic law (treaty law and national road traffic law) has already developed considerably to facilitate experiments with self-driving cars. The problems faced by the legislator mainly lies in the amendment of current traffic rules and technical regulations to a version that can be applied to the car with a remote driver as well. At an international level, the treaty parties are actively looking for a way in which the self-driving car in general can be incorporated into the law. At a national level, the legislator is currently looking for a tailor-made solution.
Dutch civil liability law generally consists of open standards that, in principle, also apply to self-driving cars. I note that in general the victim of a traffic accident caused by a self-driving car encounters problems of evidence. In addition, the aggrieved party that invokes Article 185 of the Road Traffic Act (liability of the owner and holder of a motor vehicle) may more often be presented with a force majeure defence. Although this defence is more likely to succeed as opposed to the instance of a regular defective car, it is not expected to lead to a significantly broader award of this defence. Furthermore, the aggrieved party that invokes Article 6:162 of the Dutch Civil Code (liability for a wrongful act) will usually not be able to recover its damage from the human driver or owner of the car. Often there will be an absence of guilt of the human driver or the owner of the car for the occurrence of the damage, which will likely stand in the way of the assignment of liability for a wrongful act to the human driver or owner of the car. As a result of the foregoing, the aggrieved party may not always be able to recover its damage pursuant to civil liability law, whilst it would be able to do so if the same mistake had been made by a human driver.
