Automated Systems in Vehicles and Drivers' Liability
The transport sector is becoming increasingly automated, connected and digitalized. A large part of cars put on the market today are equipped with advanced driver assistance systems (also called ”ADAS”). In the future, it is not unlikely that vehicles will be equipped with automated driving systems (also called ”ADS”). Since ADAS enable various levels of autonomous driving, i.e. driving without human intervention, and ADS will enable fully autonomous driving, the question arises as to the legality of ADAS and ADS and what legal liability drivers have in case of traffic accidents caused by the failure of such systems.
What are ADAS and ADS?
Many modern cars are equipped with ADAS to increase the safety of driving a vehicle, as most traffic accidents occur due to human error. Common ADAS applications are adaptive cruise control, lane departure warning or correction, blind spot detection and automatic emergency braking. ADAS uses sensors, such as cameras and radars, to monitor the world outside the vehicle, and then the system either provides information to the driver or, if necessary, acts to avoid a traffic accident.
The main difference between ADAS and ADS is that the latter system, by using similar technology, can operate the vehicle without intervention of a human driver. At the moment, there are no self-driving vehicles on the market, but it is not unlikely that such vehicles will be available in the near future.
In order for a manufacturer to put a vehicle equipped with ADAS (or ADS) on the market, the vehicle must be type approved. A type approval is a certificate which proves that the vehicle meets the applicable technical and safety requirements. Type approvals may be granted for whole vehicles, for a component, system or separate technical unit in the vehicle.
There are different legal frameworks on which a type approval can be based. Vehicles may be type approved in accordance with EU legislation (mainly Regulation 2018/858), agreements concluded within the United Nations Economic Commission for Europe (ECE type approval) or Swedish national legislation. The United Nations Economic Commission for Europe has recently adopted an addendum to the 1958 Agreement concerning type approvals for vehicles, which establishes uniform provisions concerning the approval of vehicles with regard to automated lane keeping systems.
It is important to note that there is legally a discrepancy between type approvals for vehicles and the driver’s liability when driving a vehicle. The fact that a vehicle equipped with ADAS is type approved does not automatically mean that the driver cannot be held criminally liable in the event of a road accident caused by a system failure. The driver’s liability for road accidents is assessed on the basis of the Swedish road traffic regulations.
The Road Traffic Regulation in Sweden
The main road traffic regulation in Sweden is the Swedish Road Traffic Regulation (sw. Trafikförordning (1998:1276)) (“Traffic Regulation”). It contains rules applicable to all road users as well as specific rules applicable to users of motor vehicles and motorways. Below is an exemplary list of rules in the Traffic Regulation which are relevant in relation to the use of ADAS and ADS:
- the distance to the vehicle ahead must be adapted so that there is no risk for a collision if the vehicle ahead slows down or stops. The distance shall also be adapted to facilitate overtaking by other vehicles (Chapter 3 § 2);
- no wheel of the vehicle may be driven over a demarcated road area or be driven across a solid road line (Chapter 3 § 11);
- the speed of the vehicle shall always be adapted to maintain traffic safety. The speed may never be higher than what is required to ensure that the driver maintains control of the vehicle and may bring the vehicle to stop on the road ahead visible to the driver or any obstacle which the driver may foresee (Chapter 3 § 14).
There are no provisions in the Traffic Regulation that specifically regulates the use of ADAS and ADS. However there has been two legislative initiatives in relation to legal reform to facilitate the introduction of ADAS and ADS in Sweden (SOU 2018:16 and Ds 2021:28). No legislation has yet been enacted. This implies that drivers are responsible for driving the vehicle in compliance with applicable traffic regulations at all times.
The driver’s responsibility when driving a vehicle equipped with ADAS or ADS
A question that arises when an ADS or ADAS is employed is whether the person driving the vehicle still shall be regarded as the “driver” of the vehicle. Only a driver can be held liable for violations of the traffic regulations. A complicating factor in this regard is that Swedish law lacks a legal definition of what it means to be a “driver” of a vehicle.
There is however a limited number of rather old supreme court rulings which suggests that a driver is always a physical individual who, at least to some degree, has control over or otherwise initiated a vehicles motion and direction (acceleration, deacceleration or steering). Against this background, it can be concluded that if a person has set a vehicle in motion, the person will still be regarded as the driver even if ADS or ADAS takes control over the vehicle and drives it autonomously.
Another key issue is whether a driver can be considered criminally negligent for relying on the ADAS or ADS to ensure that the vehicle is driven in compliance with applicable traffic regulations. There is case-law from the Swedish district courts (courts of first instance) which clearly suggests that a driver may never rely on systems like ADAS or ADS and that the driver can be held criminally liable if such system malfunctions. Examples of cases include liability for speeding and for keeping a sufficient distance in relation to other vehicles where the court dismissed the driver claims that the adaptive cruise control system did not function properly.
In summary, it can be concluded that until regulatory reform a driver using ADAS or ADS will remain responsible for driving the vehicle in compliance with applicable traffic regulations. If a road accident occurs, the driver cannot exculpate himself or herself by claiming that the accident occurred as a result of a malfunctioning ADAS or ADS.
If you have questions or want more information, contact Wistrand Advokatbyrå.