Proving liability for highly and fully automated vehicle accidents in Australia

Abstract

This article considers how liability questions will be resolved under current Australian laws for automated vehicle (‘AV’) accidents. In terms of the parties that are likely to be held responsible, I argue that whether the human driver remains liable depends on the degree to which the relevant AV is automated, and the degree of control the human driver had over the events leading up to the particular accident. Assuming therefore that human drivers would not be held liable for the majority of highly and fully automated vehicle accidents, plaintiffs will have to establish liability on part of those who manufacture, maintain or contribute to the operation of AVs, under the claims available in Australia's product liability regime.This article then turns to the problems of proof that plaintiffs are likely to face in establishing AV manufacturer liability in negligence, or in a defective goods claim under Part 3–5 of the Australian Consumer Law (‘ACL’). Firstly, it may be difficult to determine the cause of the AV accident, due to the technical complexity of AVs and due to ongoing concerns as to the explainability of AI-decision making. Secondly, plaintiffs may struggle to prove fault in a negligence claim, or that the vehicle was defective for the purposes of Part 3–5 of the ACL. Essentially, under both actions, manufacturers will be held to a duty to undertake reasonable testing of their AVs. Given that it is currently impracticable to completely test for, and eliminate all AV errors, and due to the broader social utility the technology is likely to offer, plaintiffs may face evidentiary challenges in proving that the manufacturer's testing was unreasonable.