ITS: Liability Issues

Much of the inspiration for this section of the site and its considerations and content originate from the reports “Cooperative ITS Regulatory Policy Issues” and “Cooperative Intelligent Transport Systems Policy Paper” National Transport Commission, Australia. And this source is acknowledged and thanked.

 

This page is designed to provide guidance and a direction for considering the issues concerning liability associated with the deployment of C-ITS service provision. It does not purport to be a list of all potential liability factors – which will vary according to the regime of the jurisdiction and to the form of the instantiation. Rather it discusses the major issues, and provides guidance and direction for considering and managing the future and instantiation specific deployment of C-ITS.

 

 

 

 

 

 

This page of the site explores potential business, organisational and regulatory approaches to address liability concerns, and particularly the combination of such aspects in order to manage liability issues related to C-ITS service provision.

 

As transport technology advances, the issue of who is liable in the event of a crash will potentially become more complex. The question of how liability would be resolved in the event of C-ITS system failure will be important in providing certainty to drivers, manufacturers, insurers and road managers. It is expected that the number of crashes would be reduced significantly in a fully C-ITS equipped environment, however crashes would still occur, with some specific C-ITS related reasons such as:

 

  • Conflicting or erroneous warnings being provided to drivers

  • Data communication failure or interference

  • Driver failing to respond to a warning received

  • Driver over-reliance on the technology

  • Driver switching off the C-ITS and being involved in injury to a third party that may have been avoided had he been receiving the benefits of the service.

 

We could also imagine other scenarios that involve the failure of the technology, or  limitations of the technology in different conditions or problems in the interaction between the driver and the technology. C-ITS applications draw together the whole range of parties typically involved

in the transport network, including road agencies, drivers, operators and manufacturers. When somethig gos wrng. Who is liable, and how can that liabillity be controlled

 

C-ITS applications have the potential to increase road safety, but crashes will continue to occur and liability issues will arise. ITS applications in general raise some broad liability risks.

 

Within any jurisdiction, any guidance or legislation that seeks to deal with the issues raised by ITS based solutions will have to interact with the current regulatory framework in a sufficiently clear and delineated manner and will have to deal with a wide range of causes of liability including:

  • device or system failure,

  • conflict between multiple ITS products,

  • operator information overload,

  • loss of operator attention,

  • risk compensation,

  • incorrect interpretation of information

  • liability arising as a result of the interaction of both enabled and conventional vehicles.

 

Although most C-ITS service provision is designed to, and overall may be proven to, improve safety and reduce or mitigate death and injury, it must be recognised that C-ITS applications could potentially cause a collision, for example when such an application:

 

  • fails to provide an appropriate warning in the lead-up to a collision

  • provides incorrect information (for example, in regard to the local speed zone)

  • provides a misleading warning (for example, the direction of a potential collision is unclear)

  • provides a warning which distracts the driver, leading to a crash

  • overrides the driver’s action in a way that causes a collision (for example, a brake assist application that causes a vehicle to brake suddenly in the middle of fast moving traffic).

 

The cause of any failure to provide appropriate warnings could result from a range of sources, including software problems (including those introduced as part of upgrades), limitations on sensors, signal interference, lack of accuracy in mapping or positioning information or other sources. The exact list will depend on the specific applications and whether they are merely advisory systems or more interventionist systems.

 

A consequence is and will continue to be that this could be a significant potential disincentive for manufacturers to develop C-ITS applications and other safety systems: ‘these technologies pose challenges for manufacturers and may increase their liability risk in ways that discourage the efficient introduction of these technologies’. {Elliott and Stanley, op. cit.; Rand Corporation Report, op. cit., p.21.]

 

 

 

So liability risks could prevent the roll-out of C-ITS applications or severely reduce their scope of operations, even where there is a clear overall societal benefit, because manufacturers could become excessively cautious in order to protect themselves against claims. At the same time the threat of future litigation also acts as a safeguard, ensuring rigorous testing and research before any public release.

 

Jurisdictions need to assess the overall benefits of the provision of specified C-ITS assisted service provision and ensure that there is a supportive legislative environment to provide reasonable protection from liability.

 

Where C-ITS assisted services can show a demonstrable societal benefit, the jurisdiction could be wise to seek to provide protection (probably by a legislative requirement) in the case where the system/equipment is operating properly, but retain responsibility to ensure that the equipment/system is operating properly.

 

Liability may also depend on any schemes for approving or accrediting systems. If systems are accredited, rather than left to manufacturers to develop, this may subtly shift the liability. Separation of the responsibility for the operation of a ‘system’ and the functional operation of its component equipment, may therefore be very important, and requires an adequate ‘audit trail’ to identify responsibility.

 

Finally there may be circumstances where collisions are caused as a result of deliberate abuse, including sending a false signal (through sensor or software manipulation) or a ‘denial of service’ attack which interferes with the system by sending a more powerful signal or flooding users with messages.

 

The risk of such attacks is considered to be low by jurisdictions currently assessing these possibilities, but, deployers need to be protected against being held liable for the consequential losses involved with such malicious attacks. Once again, an adequate ‘audit trail’ appears to be a strong source of protection, although the audit trail itself must be protected against abuse of privacy (See  C-ITS privacy page or ISO 17427-7 for more detailed exposition).

In a cooperative environment, the threads of causation will potentially be much more complex and difficult to trace than in solely in-vehicle system. Potential points of failure could include:

 

  • messages not being correctly sent or received

  • signal interference

  • failure to translate a signal into a warning for the driver

  • failure by a driver to understand or react to a warning.

 

Understanding the warnings and signals that may or may not have been sent or received in the lead up to a collision will create challenges to crash investigators and may result in greater use of in-vehicle data logging, such as ‘Electronic Data Recorders’, by manufacturers. Reducing the number of components in a safety system is another common means in the industry of avoiding single points of failure.

 

Even more complex scenarios can easily be imagined, such as those involving larger numbers of vehicles, different types or classes of vehicles (such as trucks or public transport), V2V and V2I applications (which, if not managed in advance of deployment,  could potentially increase the risk of liability for road authorities).

 

In addition to failures to prevent a collision, other failures could include generation of false positives or unwanted activations possibly causing a crash. Causation may be difficult to determine in these scenarios.

 

A US report concluded that ‘autonomous vehicle technologies are likely to reduce liability for drivers but increase liability for manufacturers as perceived responsibility for crashes shifts from drivers to the vehicle itself. This may impede development and use of these technologies.’ [Elliott and Stanley, op. cit.; Rand Corporation Report, op. cit., p.21.]

 

While automated ‘interventionist’ systems may become increasingly common in the longer term, vehicle technology such as C-ITS  is not likely to become mandatory until:

 

  • the technology is mature enough that manufacturers are completely confident in their operation and reliability, unless incentives are provided to cover liability

  • safety effects are well understood, including understanding the performance of the technology in different conditions and with different users.

 

Most advanced safety systems can also be understood as a series of typical functions: sensing, planning and acting. Each again comes with its own risks.

 

Sensing involves taking in data from various sensors (which may have limitations) and aggregating that data.

 

Planning involves predicting movements of other vehicles and formulating appropriate responses.

 

Acting involves carrying out the appropriate response, which may be to provide a warning or to intervene in the driving task.

 

Crash causation

Causation will potentially be much more complex and difficult to trace In a cooperative environment, than in solely in-vehicle system. Potential points of failure could include:

 

  • messages not being correctly sent or received

  • signal interference

  • failure to translate a signal into a warning for the driver

  • failure by a driver to understand or react to a warning.

 

Understanding the warnings and signals that may or may not have been sent or received in the lead up to a collision will create challenges to crash investigators and may result in greater use of in-vehicle data logging, such as ‘Electronic Data Recorders’, by manufacturers. Reducing the number of components in a safety system is another common means in the industry of avoiding single points of failure.

 

Even more complex scenarios can easily be imagined, such as those involving larger numbers of vehicles, different types or classes of vehicles (such as trucks or public transport), V2V and V2I applications (which, if not managed in advance of deployment,  could potentially increase the risk of liability for road authorities).

 

In addition to failures to prevent a collision, other failures could include generation of false positives or unwanted activations possibly causing a crash. Causation may be difficult to determine in these scenarios.

 

Types of parties in C-ITS

C-ITS applications draw together a range of parties typically involved in vehicle crashes today. For a more full understanding of the ‘roles and responsibilities’ involved in C-ITS service provision, see ISO 17427-1 In summary, these are likely to include:

 

  • vehicle manufacturers

  • technology providers of in-vehicle systems, network technologies and roadside devices

  • after-market device manufacturers

  • road managers, both public and private

  • C-ITS application system managers

  • information service providers

  • drivers with C-ITS enabled systems

  • drivers without C-ITS enabled systems.

 

There will be different liability concerns for different parties, in particular manufacturers, technology providers, C-ITS system managers and road managers.

 

Manufacturers and technology providers will be exposed to liability – the issue for both will be determining the limits of liability and the standards expected. In the absence of regulatory requirement, guidance or industry standards, this will be a matter for the courts to determine on a case by case basis. As discussed above, reasonable measures of protection for manufacturers can be provided by the timely (pre-deployment) provision of regulatory requirements.

 

C-ITS core system managers and regulators will manage the communications access rules, architecture and other key elements. These parities will need to consider and contain liability in advance of deployment or they could by default become the point for claims where responsibility is difficult to establish:

 

Establishing liability against a public body for a failure of infrastructure is a comparatively hit and miss area and is comparatively rarely achieved.

 

Example            Authorities are not normally liable for damage caused by poor road surfacing even though this can result in serious accidents.

However, methods of transport that rely more on complex systems maintained by public bodies generally tend to see a higher rate of successful litigation in the event of a failure (e.g. failure of rail or air-travel related infrastructure). It is arguable that complex ITS based solutions are closer to the latter approach and this could lead to a higher likelihood of public bodies being found liable where a system has failed.[C Dempsey ‘When directions are bad, who’s liable?’, { http://gislounge.com/when- directions-go-bad-whos-liable/  (viewed on 18/10/2012).}

 

Core systems managers could be exposed to liability if certificate issuing systems fail, resulting in the inability of a user to gain access to the benefits of a C-ITS assisted system. Road managers will potentially be exposed to liability as the provider of road-based V2I signals as crashes could be caused if incorrect information is sent out, such as incorrect speed limits. Such concerns may slow the roll-out of V2I systems. However the experience in similar areas of road management suggests that the liability risk can result in an improved system.

 

Example                 Dynamic speed signs that are subject to power or communication failures, for example, have resulted in improved back-up systems, redundancy of connections and power supplies and other controls that significantly reduced the liability exposure of road managers.

 

These liabilities all need to be managed in advance of deployment, and in most cases can be managed by the pro-active and response driven agreement to considerations of service provision.

 

Human factors

 

Human factor considerations for C-ITS applications may suggest a greater duty on manufacturers to explain the use and limitations of such systems, including foreseeable misuse and for greater demonstration of how such applications would handle system failures.

 

In this case the policy issues are closely aligned with issues regarding liability and the responsibility of the driver to be aware of whether the system is operating correctly, and to know how to react if it isn’t. This has implications for the ability of the system to report faults, or drops in performance that might lead to failure, and how the current system status is reported to the driver. Therefore, there will have to be a policy on system safety to complement policies on highway and vehicle engineering safety. {Elliott and Stanley, op. cit}

 

C-ITS applications may need to take into account different types of users in their design:

 

Recall that standards for air bags were set for only a limited section of the driver and passenger population – namely, average male adults. It became apparent only after widespread implementation that they put smaller passengers at risk of injury or death. Autonomous vehicle technologies, too, will affect different people differently. In the case of driver-warning systems, for example, users’ expectations of how and when the technology will work and their ability to understand the system’s directions and warnings will affect the effectiveness of the technology. Therefore, standards must be developed that take into account diverse populations. {CVIS, Guidelines for policy makers: policy challenges on the way to deployment of CVIS (2010), p.28.

http://www.cvisproject.org/download/Deliverables/DEL_DEPN_7.1_Guidelines%20for%20policy%20makers_Final%20versio n_v2.8.pdf

Legal Status

 

Liability is an area where there are very well-established principles in most countries. These have been derived from centuries of common law but also incorporating a series of more recent legislative amendments and extensions. Liability varies in extent in different countries, but the accepted principles are remarkably consistent around the world.

 

In transport crashes, liability encompasses three broad areas of law: tort, contract and product liability. These aspects ae considered in ISO TR 17427-8

 

The legal framework is summarised as:

 

Europe

 

In Europe liability issues have been identified as a key question to be addressed for ITS generally:

 

Liability issues have notably hampered the market introduction of intelligent integrated safety systems, with legal questions regarding product/manufacturer liability and driver responsibility. For advanced driver assistance systems, for instance, the liability risks may be highly complex — the term ‘defective product’ is used in the EU product liability directive not only in a technical sense but is also linked to human factors including system requirements such as dependability, controllability, comprehensibility, predictability and misuse resistance, which in turn brings in human–machine-interaction safety issues.

 

However, analysing liability in Europe in relation to driver assistance systems, Van Wees concluded that:

“Product liability stresses the responsibility of the industry and is far more flexible than vehicle safety regulation. This being said, however, we could still agree that it would be undesirable if system developers and car manufacturers are discouraged to develop and market ADAS only because the (perceived) liability risks are too high. Product liability is often labelled as an important ‘show stopper’ for the market introduction. Certainly, more advanced ADAS such as anti-collision systems that intervene in critical situations, will because of the consequences potentially raise serious and difficult product liability questions which may need some legal intervention.

 

However, one should not put all the blame on liability. First of all, the threat of product liability will have a preventive effect, helping to keep immature or poorly designed technology off the market. Secondly, an important observation in this respect is that, although product liability is getting a lot of attention in the legal literature, case law on the subject, especially in relation to the automotive sector, is rather rare. Of course, this may certainly not be considered the only indication whether or not product liability must be regarded as a threat for the deployment of ADAS. For instance, most claims will probably not reach court, because manufacturers prefer settlement outside court. Collecting evidence about such settlements is almost an impossible task. It appears, however that in Europe (automotive) producers are, in contrast to the United States, until now not burdened with a great number of claims. Recent evaluations of the Product Liability Directive did not reveal any serious problems of the automotive industry with this Directive either. Furthermore, the introduction of other innovative automotive technologies, such as navigation systems, ABS, ESP or ACC, does not seem to be seriously limited by the impact of the product liability law.”

 

This last point is particularly worth noting in the context of considering whether legislative changes are required.

 

Europe has also developed a code of practice for the design and evaluation of driver assistance systems, which:

 

‘summarises best practices and proposes methods for risk assessment and controllability evaluation’.

Recognising that ‘existing technical limits as well as liability issues are currently delaying the market introduction of Advanced Driver Assistance Systems’

 

The code of practice is intended to allow manufacturers ‘to demonstrate that state-of-the-art procedures in ADAS development have been applied, including risk identification, risk assessment and evaluation methodology.’

{UK: Laws Road Traffic Act 1988 sects 2 & 3 & CUR reg 104}.

 

USA

 

As part of its ‘Connected Vehicle Program’, US DoT RITA has an ongoing policy and Institutional Issues project, one of whose tasks is to look at liability issues, including:

  • developing a risk inventory

  • developing a framework for addressing potential risks, including risk mitigation strategies

  • conducting an industry impact analysis.

{CVIS  CI Communications Interface     http://www.cvisproject.org/}.

 

The US has a thorough website analysis its strategy towards C-ITS, and particularly aspects involving core systems.

 

Electronic data recorders may play an important role in C-ITS systems in order to log events, providing the ‘audit trail’ mentioned throughout this report. In the US, such data has previously been used in order to prove criminal liability. As far back as 2002 a driver was convicted of manslaughter, in part based on evidence from an electronic data recorder. These issues also arise in regard to compliance and enforcement, considered later in this paper. ‘Electronic Data Recorders’ also play an important role in monitoring for defects, which can lead to recalls when required.

 

Australia

Australia has made comprehensive study of C-ITS liability issues, that have formed the backbone start point and much of the content of this Technical Report.

See

Cooperative ITS Regulatory Policy Issues.  National Transport Commission, Australia and C-ITS Policy Paper FINAL. National Transport Commission, Australia. Dec 2013, for further detail.

 

 

 

The driver remains in charge

If the liability of the actors required to make C-ITS service provision happen is to be reasonably controlled and limited, it is imperative that in most circumstances, the jurisdiction determines and enforces a regulative environment where, in most circumstances, the driver is considered to be in control of the vehicle and must drive safely for the conditions. The liability regime needs to remain premised on ‘driver responsibility for the control of the vehicle’. This is derived from the Vienna Convention on Road Traffic. {Rand Corporation Report, op. cit., p.41.}. This is an important assumption from a liability perspective but one that may be challenged with increasingly automated systems entering public roads.

This obligation has been found by the courts (in many countries) to operate in a variety of driving scenarios, for example when a driver approaches an intersection:

 

The common-law duty to act reasonably in all the circumstances is paramount. The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations; for there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case. {Vienna Convention on Road Traffic.}

 

The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to ‘reasonable care’ is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected. {UK Highway code : https://www.gov.uk/general-rules-all-drivers-riders-103-to-158/general-advice-144-to-158}.

 

These examples happen to be taken from Australian road use regulations, but similar can be found in most driving/Highway codes. The UK Highway code states very simply for example: “You MUST exercise proper control of your vehicle at all times.”

{UK Highway code : https://www.gov.uk/general-rules-all-drivers-riders-103-to-158/general-advice-144-to-158

Australian Road Rules, regulation 297}.

 

 

 

Tort, contract and product liability

 

In transport crashes, liability encompasses three broad areas of law: tort, contract and product liability.

 

Tort

In most countries, a wronged party (for example one having been in a collision) can take action against another party or parties under the common law action of tort (a wrongful act or an infringement of a right (other than under contract) leading to legal liability). Such cases require the key elements of:

  • duty of care

  • breach of duty (that is, standard of care)

  • causation

  • damage

 

In English Law, and one of the bases of the law regarding tort in many countries, Lord Atkin set the precedent “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour... persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.” This has been generally broadened to include three basic elements of tort:

 

  • reasonable foresight of harm

  • sufficient proximity of relationship

  • Is it is fair, just & reasonable to impose duty of care.

Duty of Care

If all three parts are satisfied a duty of care may be imposed.

 

Whilst the duty of care for service providers to their clients is clearly easily established, and also on a public road establishing any breach by the road manager will likely be straightforward. But with C-ITS service provision, where decisions are made as a result of information received from parties where there is no direct contractual or clear civil relationship, is there “sufficient proximity of relationship” for tort to be applicable?

 

C-ITS data provision may raise particular issues in relation to causation and the remoteness of the damage caused, and judges are likely to be minded to turn to the original stipulation of Atkin “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”.

 

Current legal opinion is likely to interpret this that accidental misinformation, or accidental error in transmission, either causal to the transmission or in the content of the transmitted information, would not be a breach of duty of care, however deliberate misinformation or information transmitted from equipment that was not properly maintained could well be interpreted as a breach of duty of care, even if there be no contractual relationship between the parties. The common law is supplemented and amended by state legislation in most jurisdictions, and often in a particular a series of civil liability acts. There is likely to be different interpretation in different jurisdictions.

 

Also with C-ITS equipped vehicles, the Atkins precedent “omissions which you can reasonably foresee would be likely to injure your neighbour” could be taken as a duty of care that C-ITS equipped vehicles have a duty to share relevant C-ITS information with their neighbour. It is likely that these issues will have to be tested in court, and may provide different results in different jurisdictions, but their potential interpretation can provide guidance to limit liability.

 

Terms and conditions of use will need to be clearly defined with clear caveats on the limits of liability of the data provider, and the duty of care moved as far as possible to the user of the data having a requirement to use reasonable care in the use and interpretation of received data. Otherwise no-one will be prepared to share data/information for fear of incurring liability. It has been suggested that ‘Terms and Conditions of Use’ will need to explicitly define the user of information as the party in charge to treat the received information as being sent ‘in good faith’ but ‘caveat emptor’. This needs to be examined within the paradigm of each jurisdiction.

 

Under the principle of caveat emptor, the ‘buyer’ cannot not recover damages from the ‘seller’ for defects on the property that rendered the property unfit for ordinary purposes. The only exception is if the seller actively concealed latent defects or otherwise made material misrepresentations amounting to fraud. Hence, buyers are advised to be cautious. In respect of caveat emptor, a ‘buyer’ is a party who contracts to acquire an asset in return for some form of consideration.

 

While the information exchanged in C-ITS may have no monetary consideration, ‘Estoppel’ is an equitable doctrine that provides for the creation of legal obligations if a party has given another an assurance and the other has relied on the assurance to his detriment. That assurance may be considered a ‘consideration’ in many legal jurisdictions. Indeed in Roman law, and jurisdictions whose legal framework is based on the principles of Roman law, consideration is not an absolute requirement of a contract. That there is no formal contract between the parties in much C-ITS service provision, is covered in the circumstances of caveat emptor, as a quasi-contract. Quasi-contracts are defined to be "the lawful and purely voluntary acts of a man, from which there results any obligation whatever to a third person, and sometime a reciprocal obligation between the parties”.

 

This interpretation of an implied contract, rather than ‘tort’ may be interpreted in some jurisdictions as being more relevant to C-ITS systems which are dependent on the mutual exchange of information.

 

To manage liability, therefore, the terms of participation by all parties in the provision of information need to be agreed in advance in terms and conditions of use. The exact situation and conditions may vary according to the legal paradigm of the jurisdiction, but in general terms should seek to be a relationship of reciprocal obligation between the party receiving and any C-ITS equipped party providing the information (data) conducted caveat emptor between both parties. This could minimise the risk of being pursued through ‘tort’ (which only applies to uncontracted parties).

 

Causation and Damage

‘breach of duty’

The consequences of ‘breach of duty’ will vary from jurisdiction to jurisdiction, but generally will encompass such issues as:

  • For the purpose of deciding the scope of liability, the court will have to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty

  • The court must consider why responsibility should be imposed on the party in breach and these provisions appear designed to bring out any policy issues and judgements in assessing liability.

 

‘Scope of liability’ is likely to cover issues, other than factual causation, referred to in terms such as ‘legal cause’, ‘real and effective cause’, ‘common sense causation’, ‘foreseeability’ and ‘remoteness of damage’’.

 

Causation is also usually not an ‘all-or-nothing’ scenario. Multiple factors may contribute to a crash in a cooperative environment and most jurisdictions embrace concepts of joint, several and contributory liability where a manufacturer or service provider could contribute in part to a collision (and be held liable for this contribution) even if they are not wholly responsible.

 

On the questions of burden of proof, jurisdictions typically hold that ‘in deciding liability for breach of a duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.’ Whilst this remains an important legal principle, due to the potential difficulties in demonstrating factual causation mentioned above, this may be a high barrier for many claimants to overcome.

 

It is also worth noting from a transport perspective that many jurisdictions provide certain exemptions for road authorities, in particular in relation to the repair of roads and in assessing whether a road authority, infrastructure manager or works manager has a duty of care or has breached a duty of care. These may need to be updated to adequately cover C-ITS and core systems.

 

Contract law

Parties in a cooperative system may be linked through a network of contracts (for example, a road operator who contracts for the provision of a V2I system with an equipment provider and an information provider). Questions about the allocation of risks and liabilities under a contract are largely left to the parties to the contract themselves to determine under the principle of freedom of contract, provided that the contract is not illegal. Contracts in this area will need to ensure that they cover details over uses and ownership of data, allocation of risks and costs and any caps on liability.

 

Two areas of contract law may be of particular relevance to C-ITS:

  • disclaimers under consumer contracts

  • insurance contracts will be relevant for the allocation of risks and are governed by local Insurance Contracts legislation.

Product liability

Product liability is a common aspect throughout the world, but legislation and the scope of consumer protection varies from jurisdiction to jurisdiction. Most jurisdictions have regulations that provide general obligations that goods are of merchantable quality and that services supplied are fit for purpose. The regulations also usually set out obligations to comply with prescribed safety standards.

Suppliers can generally reduce exposure to product liability action by using responsible and sensible business practices, including:

  • conducting regular reviews of product designs and production

  • ensuring that use limitations and liability limitations are clearly displayed on packaging, in instruction manuals and in marketing material

  • where possible, using proactive ‘opt-in’ procedures and acceptance of liability limitations

  • implementing and reviewing quality assurance procedures

  • testing products regularly to relevant standards, including batch testing

  • conducting appropriate marketing

  • providing clear and thorough user instructions

  • where necessary, conducting a quick voluntary recall of any products that are defective or unsafe.

 

Compulsory third party systems

Many jurisdictions have compulsory third party personal injury schemes, funded through registration payments. Such schemes provide compensation for personal injuries sustained in crashes on public roads, although terms and benefits vary widely between jurisdictions. Some of these schemes are run on a no-fault basis, others are fault-based. There is a direct economic benefit to these schemes if the road toll is reduced and they are typically very involved in improving road safety.

 

Although no-fault schemes manage liability for most personal injury cases, liability may still be an issue in some cases, including those involving challenges to commission determinations and those involving exceptions within respective Acts (such as contributory negligence).

Incidents involving a person in the course of their employment may also fall under the relevant workplace health and safety legislation, although most state and territory legislation sets out that employees involved in traffic incidents are captured by the motor vehicle legislation.

 

 

 

 

More Information

 

Can be found in ISO TR 17427-8

 

Useful references include:

 

Cooperative ITS Regulatory Policy Issues.  National Transport Commission, Australia

 

C-ITS Policy Paper FINAL. National Transport Commission, Australia. Dec 2013

 

CVIS  CI Communications Interface     http://www.cvisproject.org/

 

Connected Vehicle Technology. US DoT http://www.its.dot.gov/research/systems_engineering.htm

 

Elliott and Stanley, op. cit.

 

Rand Corporation Report, op. cit., p.21.

 

Rand Corporation Report, op. cit., pp. 38-39. A separate issue has been deaths caused by air bag fumes,

http://www.news.com.au/world/british-driver-dies-after-breathing-in-airbag-fumes/story-e6frfkyi-1226373204448

 

ECE/TRANS/180/Add.8  UNECE. Global technical regulation No. 8 ELECTRONIC STABILITY CONTROL SYSTEMS

 

C Dempsey ‘When directions are bad, who’s liable?’, http://gislounge.com/when- directions-go-bad-whos-liable/  (viewed on 18/10/2012).

 

CVIS, Guidelines for policy makers: policy challenges on the way to deployment of CVIS (2010), p.28, http://www.cvisproject.org/download/Deliverables/DEL_DEPN_7.1_Guidelines%20for%20policy%20makers_Final%20versio n_v2.8.pdf (viewed on 18/10/2012).

 

Vienna Convention on Road Traffic.

 

Australian Road Rules, regulation 297.

 

UK Highway code : https://www.gov.uk/general-rules-all-drivers-riders-103-to-158/general-advice-144-to-158

 

UK: Laws Road Traffic Act 1988 sects 2 & 3 & CUR reg 104

 

PREVENT, Code of Practice for the Design and Evaluation of ADAS, 2006.

 

Cooperative Intelligent Transport Systems Policy Paper. National Transport Commission. Australia. ISBN: 978-1-921604-47-8

 

 TCA Cooperative ITS Regulatory Issues_1402132013040216245649                            http://www.ntc.gov.au/rfcDocuments/Cooperative%20ITS%20Regulatory%20Issues_1402132013040216245649.pdf