Autonomous Driving: Do We Need a New Law on Liability in Germany?

Some say that the rights of the injured party in a car accident would be impaired if it was injured by an autonomous car – the driver (or rather the passenger) of the autonomous car would not be liable. Therefore, does the German liability law need any further amendments before autonomous driving could become reality in Germany?

If one gets injured in a car accident today, one can potentially hold the following three persons liable under German law: the driver, the manufacturer of the car and, most importantly, the “Halter” (i.e., the keeper of the car who is compulsorily insured).

While new, mostly practical questions will also arise with regard to the manufacturer and the keeper or insurance, it is clear that they will continue to be liable if their car is an autonomous one. Therefore, the question really boils down to the drivers: Will they still be liable and, if not, would this be a disadvantage for the injured party?

Whether or not the drivers can remain liable depends on the level of autonomy. Here, we are talking about the final level, i.e., the “Full Self-Driving Automation”. However, the essential question is not what the cars can do, but rather what the drivers are legally entitled not to do.

If a car completely drives by itself, but the law requires the driver to constantly supervise it and if need be, to intervene, then it is clear that the driver will remain to be fully liable towards the injured party (and potentially have recourse against the car dealership or manufacturer). In this case, the legal position of the “supervising driver” is very similar to the one of driving instructors today because of their supervision obligation, driving instructors are (with regard to liability) deemed to be the driver.

But, what if drivers are legally entitled to read the newspaper or check their e-mails and only have to intervene after having been alarmed by the autonomous system? Since the drivers’ liability requires at least negligence, I believe it to be correct to release them from a potential liability – if they are legally entitled not to pay attention to the traffic.

The same is even more true should it become legal (at some point in the future) for blind or otherwise physically impaired persons to use autonomous cars all by themselves. In this scenario, which is one of the greatest promises for our aging society, it is clear that the non-drivers have not committed any fault (at least, if they were entitled to trust that the machine is safe).

In this light, the essential question is whether the driver’s non-liability would be so detrimental to the injured person that the German liability law needs to be changed. I am convinced that this is not the case:

Injured parties mainly aim at receiving damages from the keeper’s insurance – based on a strict liability which does not even require any fault. While this liability is indeed limited in some ways, these limitations do hardly ever apply (for example, the cap of EUR 5 million for personal injuries relating to the same incident pursuant to § 12 I 1 StVG is hardly ever reached).

Since it is very questionable that payments exceeding this cap can actually be obtained from the driver, the driver’s unlimited liability hardly ever becomes relevant. If drivers are sued by the injured party, this is only to make them a party to the proceedings and thereby “eliminate” them as a witness of the opposing party.

In addition to this slightly limited, but strict liability of the keeper or insurance, the injured person can in some cases also make the manufacturer liable. Aside from the strict, but also limited product liability, this encompasses the unlimited general tort liability.

To sum things up, the drivers should remain fully liable if they are obligated to supervise their cars’ actions. However, if they are legally entitled to be entirely out of the driving loop, it appears only just to also take them out of the liability loop. This would not result in any substantial detriment of the injured person and, therefore, the German liability law does not need any amendments to cope with autonomous driving.

Share your opinions regarding the above approach towards German liability law for autonomous driving

Please note that this article expresses the opinions of the author and does not reflect the views of Move Forward.