Who is at fault in a self-driving car accident​?

Because technology is advancing at an exponential rate, societies – and often their legal systems – are left to play catch-up. One of the keenest examples is autonomous driving, which refers to vehicles fitted with technology that allows them to perform a degree of driving function without human intervention. This can be anything from simple assistance, such as adaptive cruise control, to full self-driving. With the possibility that fully autonomous vehicles could be on the road sooner than many think, Australians may be faced with a question: who is legally at fault in an accident involving a self-driving car? 

As with any new technology, there will be an inevitable period of integration – situations where human- and AI-driven vehicles are sharing a road and at risk of collision. Add cyclists and pedestrians and the situation becomes understandably murky. Authorities will need to determine acceptable safety standards and who is culpable if things go wrong. 

Australian government bodies are already trying to get ahead of the issue. The National Transport Commission (NTC) and the Department of Infrastructure, Transport, Regional Development, Communications and the Arts (DITRDCA) asked for feedback earlier this year on how laws surrounding automated driving might be shaped and implemented. The proposed initiative, named the Automated Vehicle Safety Law (AVSL), would look to create a framework regarding the standards by which an autonomous vehicle is assessed for use on Australian roads. Back in 2022, the proposal received approval from transport ministers to be incorporated into commonwealth law upon its completion, which is expected sometime around 2026. 

According to the NTC and DITRDCA, the AVSL aims to provide a regulatory framework that includes “how the law should keep modifications, repairs and remote operation of automated vehicles safe, and how to make sure consumers get the information they need about automated vehicles”. It also addresses any necessary “changes to state and territory laws, including what new road rules are required for people using automated vehicles”. 

Accompanying this, equal focus will be placed on the assumption that accidents – whether by human or computer error – will take place, and that fault will need to be attributed. Regulatory advice for the AVSL suggests a vehicle’s automated driving functions should be the responsibility of a corporation, not its human occupants, and legal onus be ascribed accordingly. This corporation, to be known in legislation as the Automated Driving System Entity, will only be allowed to operate autonomous vehicles on Australian roads if it can prove it possesses the right skills, capacities and capabilities to operate an autonomous driving system over a vehicle’s operational lifetime. Whether these corporations will be car manufacturers themselves, third-party autonomous driving tech companies or a blend of the two is yet to be seen. 

Setting aside any ‘man versus machine’ debate, the process of dispute resolution following a collision will likely be expedited with the dawn of autonomous driving. The same technology used to power an autonomously driven car can be used to plot exactly where it was and what it was doing during an incident.  

As NRMA senior policy advisor, Nikesh Murali, explains, “Research to date suggests the technology required to facilitate autonomous driving could actually remove confusion about who or what was at fault in an accident. 

“The data a self-driving vehicle’s software and hardware collects during operation may be robust enough to ensure the answer of who’s at fault is more clear cut than in accidents where only human-driven vehicles are involved.”