First published in TEC: Traffic Engineering and Control, February 2010.
Uncertain legal liability for losses was identified in the European Commission's ITS Action Plan as one of the most significant hurdles facing manufacturers and governments seeking to deploy ITS-based solutions. Peter Elliott and Edward Stanley examine the legal backdrop and conclude that clarifying liability issues would be an important step in encouraging the development of ITS solutions.
Introduction and Background
One of the principal benefits of many Intelligent Transport System (‘ITS’) based solutions is, or should be, increased safety for all forms of transport users. Despite this, one of the most significant hurdles faced by manufacturers, industry organisations and governments seeking to develop or implement ITS based solutions is the prospect of uncertain legal liability for losses caused or contributed to by these technologies. This problem grows given the international nature of ITS and vehicle telematics.
Even when clearly understood, legal issues surrounding liability can have strongly inhibitory effects on emerging technologies as interested parties seek to mitigate perceived legal risks. In the field of ITS however, there is still considerable uncertainty at both national and international levels with regard to the regulation of the technology and the legal framework surrounding liability for loss or damage caused by these systems. There is a danger that this uncertainty over the extent of the possible risks could result in parties taking overly cautious approaches to product development.
The current degree of uncertainty is, however, not at all surprising given the wide and rapidly developing range of complex ITS based products in development and the highly varied legal landscapes, both geographic and in terms of vehicular platform, in which they operate. Unfortunately, the fast-paced development of ITS products and the corresponding lag in legal and regulatory oversight means that it is not always possible to rule out all legal risks. In many developing sectors there is a grey area caused by law failing to keep pace with the technologies it seeks to regulate. Nowhere is this more true than in rapidly developing fields such as ITS.
There seems to be a general consensus that this confusion is having a negative effect on the implementation of ITS based systems. For example, in a consultation in 2008, the European Commission found that only 15% of respondents thought that liability concerns were not a major issue in developing ITS and stakeholders prioritised clarification of legal and data protection concerns as needing attention across the EU above all other factors (although, to be fair, the phrasing of the question seems likely to have influenced the answers). The rest of this article summarises some of the key liability issues and give an overview of how these issues are being dealt with.
The paragraphs below very briefly examine the existing legal position as these will be the rules under which many current and near-future ITS solutions will operate until more concrete changes are implemented at a Europe-wide level. Any legislation or guidance that seeks to deal with the issues raised by ITS based solutions will have to interact with the current 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 and liability arising as a result of the interaction of both enabled and conventional vehicles.
In the UK and the EU, liability can be incurred through a wide range of distinct or sometimes overlapping legal mechanisms. For the purposes of this article however we shall only briefly examine four of the most relevant areas.
In the UK, liability caused by a product failure is likely to be dealt with under the regime imposed by the Consumer Protection Act 1997. This imposes civil liability on producers, own-branders and importers of defective products. Liability under this regime is ‘strict’, which means it would not be necessary for a party that had suffered loss to show that there was any element of negligence or fault, it is simply enough to show that the product was defective and that defect caused loss or damage.
In England, the tort of negligence is a broad measure that is used to establish liability in a very wide range of circumstances. In general, a party that has suffered loss would need to show that the individual or company that caused the loss breached a duty of care to them and this resulted in a quantifiable loss. Unlike consumer protection law, which is broadly the same across Europe and about which there is comparatively little case law to act as guidance, negligence is frequently litigated and is applied very differently from country to country.
Transport Specific Legislation
Different countries have a wide range of laws relating to civil and criminal liability for the operators and manufacturers of vehicles. For example many countries have very different starting points when it comes to liability. In many countries, including the UK, liability must be proven. In many other EU member states, the presumption is that drivers of motor vehicles are liable in the event of a collision with a pedestrian or cyclist and it is up to the driver to disprove liability. This lack of consistency is a serious challenge to the adoption of a standardised European approach.
Liability of Public Bodies
Finally, there is the possibility that public bodies that implement ITS based solutions could be held liable in the result of a failure of the system. Establishing liability against a public body for a failure of infrastructure is a comparatively hit and miss area and is comparatively rarely achieved. For 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 bodes being found liable where a system has failed.
It has been clear for quite some time that clarifying liability issues would be an important step in encouraging the development of ITS solutions and this has resulted in significant research into the issue by various governmental and trade bodies. As part of this process, recognition has thankfully been given to the pan-European nature of ITS development and many of the most advanced and comprehensive proposals have come from European bodies.
Lack of legal certainty was identified early on by the European Commission as one of the prime factors contributing to the reduced uptake of ITS solutions. In its recent Action Plan, it was noted that, across Europe, ITS based solutions have been deployed at a much lower rate and in a more fragmented manner than previously been expected. This has resulted in the fragmented deployment of a number of geographically limited ITS solutions with limited interoperability and so has not led to the anticipated efficiency gains or achievement of policy objectives.
In the European Council‘s conclusions on the Action Plan published in March this year, they invited the Commission to address the liability issues pertaining to the use of ITS applications by the end of 2011 at the latest. This action is still ongoing.
Taking a similar approach but from a slightly different perspective, the PReVENT Integrated Project is a European automotive industry initiative (jointly funded by the European Commission) which aims to contribute to road safety by developing preventative safety applications and technologies. One of its primary objectives is to speed implementation of ITS based solutions by clarifying legal liability issues. Although it is primarily concerned with road related ITS technology currently in development, much of the logic behind the project’s liability related findings is highly relevant to other modes of transport and other technologies which are still many years from practical implementation.
One of the most interesting deliverables to come out of PReVENT was the code of practice for the design and evaluation of Advanced Driver Assistance Systems. This code, although it does not change the law itself, has been highly influential in product design and it provides a very clear analysis of the relevant legal issues by categorising ITS products into one of three types, each of which have their own specific liability issues:
- information and warning systems – where, broadly, liability should remain with the operator;
- non-overridable intervention systems – the opposite extreme where manufacturers and implementers are likely to be liable; and
- overridable intervention systems – which represent a complex grey area between the other two.
This very straightforward and sensible system mirrors current legal trends and may play a part in paving the way for future legal developments. However, as with most other attempts to simplify the situation, the legal framework surrounding the third category of overridable intervention systems will require a great deal of thought if a fair and practical framework for liability is to be established.
This message holds true for much of the framework that will be necessary for ITS based solutions to be properly integrated into the current legal system. Such integration is much more complicated than it would seem and will require the continued input of researchers, manufacturers, governments and lawyers if a fair and workable solution is to be achieved.