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Who is liable in Level 3 automated mode, the driver or the car?

Extensive data recording of “critical events” while in L3 to assist in accident reconstruction and liability

  • Today, in Level 0-2, the driver’s inattention at any given point in time triggers his liability
  • Level 3- Conditional “eyes-off”, hitting the road by the end of 2017, has implications for the determination of liability because the driver will be conditionally allowed to be “distracted” but he is still required to be “available”
  • Impact on traditional vehicle insurance as well as carmakers, given the significant engineering challenges to implement extensive data recording amid an immature regulatory framework
  • Carmakers to accept liability while in L3 automated mode but drivers must not sleep or move away from the seat- emergency vehicle stop if the driver fails to respond to takeover request

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Why we need Event Data Recorders (EDR) for automated driving

Existing EDR capability is focused on the seconds around a crash (e.g. 30 seconds before and 15s after the crash) while data capturing needs for Automated Driving may cover a much broader period and require longer storage.

In Level 3, when the system is active and when it becomes legal for drivers to be partially distracted by ADAS, drivers will be able to relax, read, text, call, watch TV, but not sleep or move from their seat because they must always be available to takeover vehicle control when the system signals a transition demand or in case of a system malfunction. But the driver will still be responsible for the overall vehicle control even when the system is active and will have the ability to override it.

In case a “critical event” occurs while the ADS is active, which might expand from an accident to include traffic law violations, data recording capabilities will be required to contribute to accident reconstruction and potentially assist in supporting claims against the manufacturer.

Data recording would be useful to understand if the system failed or transferred control to the driver who failed to ‘’react’’

Therefore, we assess that AD event data recording requirements will be both an engineering prerequisite and a regulatory/legal requirement for deployment and legality to accommodate ‘’critical events’’ and ‘’automated driving mode’’. In the words, to make sure that effective driver monitoring is in place and, when needed, control can be handed back to a driver who is fit and able to drive the vehicle.

What is more, it will be necessary to be able to access the vehicle data in order to determine the circumstances surrounding a given incident, any possible defect or fault in the system, or whether the vehicle was operating under a partially/fully automated mode.

Immature regulatory guidance on data recording and storage for Automated Driving challenges deployment

There is a consensus that EDR-AD will be a regulatory prerequisite for the deployment of L3 as demonstrated by the requirements for EDRs-AD in the amendment of the German Road Traffic Act and the amendment of Reg.79 which already mentions DSSA capabilities -although at a draft status. The problem is that regulatory action is at an early stage therefore guidance on engineering requirements is still immature. We expect though that this will not restrict car manufacturers and suppliers to put EDR-AD in place for L3.

Germany has already passed a law that will allow L3 as long as data recording and sharing are in place and systems are compliant with relevant international regulation. Furthermore, Germany and the UK are among the key car markets which have already started procedures to adjust their road traffic laws/acts to accommodate L3.

On the contrary, the U.S follows a standalone policy based on the star-by-state control of AD regulation and the voluntary federal guidelines which might cause lack of standardisation.

Amid the immature regulatory framework, carmakers face the challenge to design and implement data recording capabilities that will cover the minimum (expected) regulatory requirements but also cover them above and beyond in terms of product liability.

To read more about Autonomous Driving regulation check our report Roadmap to Self-Driving Cars.

For more information on this report, including sample pages and full Table of Contents, please contact us on (+44) (0)20 3286 4562, info@auto2xtech.com.


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