Different Liability Regimes for Autonomous Vehicles: One Preferable Above the Other?

Autonomous vehicles are said to bring safety to the roads. Machines are expected not to make the same driving mistakes as humans. Indeed, machines will not drive intoxicated or get too tired to drive. However, the application of adversarial machine learning to autonomous vehicles has shown that the reaction of these vehicles to altered traffic signs may be the cause of unpredictable reactions. Rather than stopping in front of a vandalized stop sign, the autonomous vehicle may speed. This may lead to accidents. Therefore, scholars have developed various liability and compensation schemes to deal with accidents by autonomous vehicles. The following liability and compensation schemes have been suggested to deal with the civil liability of accidents of autonomous vehicles: operator liability, product liability, strict liability, no-fault compensation, and negligence. Each of these schemes are judged against victim and innovation friendliness. The former is being framed as easiness to obtain compensation, while the latter is understood as a burden on the industry. Operator liability, strict liability and no-fault compensation are considered as victim friendly. Product liability and negligence put a burden on the victim to prove either a defect of the product or a fault of the manufacturer. Only by shifting the burden of proof to the manufacturer would these systems be made victim friendly. In terms of innovation, the situation is not obvious. Operator liability, product liability and negligence make it difficult for a manufacturer to anticipate the size of the financial burden in case of an accident. This would be different with strict liability and no-fault compensation. Much of the discussion above is framed in relation to vehicles that are operating autonomously on their own. There is, however, more and more research on infrastructure enabled autonomy. In system, autonomous vehicles will be operating in connection with road side units, cloud services, and other traffic participants. As this will bring together products, services, and behavior, a mix of different liability regimes will make it difficult for the victim to obtain compensation. Therefore, a one-stop window may facilitate obtaining compensation. No-fault compensation could be ideal.