Picture source: Gallo Images/Getty
‘What is now proved was once only imagined’ (William Blake The Marriage of Heaven and Hell (United Kingdom: Oxford University Press 1975) at 18). This sentiment can be interpreted as encompassing the depth of human innovation and ingenuity, an apt example of which can be found in the idea of automated travel. The testing and development of self-driving cars (SDCs) persisted from the 1920s to 1980s, especially in the United States (US) and faded out hereafter (Erik Lee Stayton Driverless dreams: Technological narratives and the shape of the automated car (unpublished Master’s thesis, Massachusetts Institute of Technology, 2015) at 11–22).
With the arrival of the Fourth Industrial Revolution, there has been a resurgence in the experimentation and development of SDC technology. This can be seen from the collective efforts of companies like Tesla, Uber, Google and Waymo creating modern SDCs (Christina Mercer and Tom Macaulay ‘Companies working on driverless cars’ (www.techadvisor.co.uk, accessed 17-6-2020)).
According to former Minister of Transport, Blade Nzimande, even though there are no SDCs currently on the roads of South Africa (SA), there are plans for their introduction (‘South Africa has plans for self-driving cars – but the law needs to change first’ (https://businesstech.co.za/, accessed 13-4-2020)). The proposed introduction of SDCs, viewed against the backdrop of SA’s high rates of car accidents, will probably require legal regulation in various forms (Road Traffic Management Corporation’s Annual Report of 2016-2017 (www.rtmc.co.za, accessed 27-1-2020)).
In what follows, I will briefly explain where SDC technology currently is. Thereafter, I will outline some of the legal regulatory issues that we will have to think about going forward, if SDCs drive their way into SA.
SDCs are vehicles, which can or should be capable of navigating their way on roads by use of GPS technology and various sensors with minimal to no intervention by the driver or passenger (Richard LoRicco ‘Autonomous Vehicles: Why we need them, but are unprepared for their arrival’ (2018) 36 Quinnipiac LR 297 at 299-303).
SDCs can fall into any of the 0 – 5 SAE levels (SAE International ‘SAE International Releases Updated Visual Chart for its “Levels of Driving Automation” Standard for Self-Driving Vehicles’ (www.sae.org, accessed 15-4-2020)).
The overarching issue surrounding the use of SDCs is the difficulty and uncertainty in establishing where liability lies or with whom if an SDC accident occurs. This is partly due to the fact that SA does not have a clear or situation-specific set of rules to deal with the unique or novel challenges presented by the introduction of SDC’s.
Since SDCs are fairly new and are not found operating commonly on public roads, there is an element of risk attached to the operation of these vehicles. In order to minimise this risk, it is recommendable that legislation is enacted which regulates the licensing, testing, and operation of SDCs. Examples of such legislation can be found in the US, such as the HR 3388, 115th Congress, Self-Drive Act, of 2017-2018, Tennessee Senate Bill 151 and the Michigan Senate Bill 996, Bill Analysis.
Section 7 of Self-Drive Act requires manufacturers of SDCs to –
Section 19 of Tennessee Bill and Michigan Senate Bill – Safe Autonomous Vehicle Act (SAVE) project states:
These types of regulations will have to be promulgated by government. In SA there are two existing pieces of legislation, which are applicable to motor vehicle accidents, and by extension could be applicable to SDC accidents. That is why it is prudent to analyse the Road Accident Fund Act 56 of 1996 (RAF Act) and the Consumer Protection Act 68 of 2008 (CPA) and potential issues or areas of uncertainty that may arise from their application.
The main elements of s 17(1)(b) of the RAF Act raise a series of questions in application to SDCs:
As a starting point an overall subjective and objective test can be utilised to determine what qualifies as a motor vehicle. The subjective test requires one to examine ‘the purpose for which the vehicle was conceived and constructed’ and the objective test is one where a ‘reasonable person would perceive that the driving of the vehicle … would be extraordinarily difficult and hazardous unless special precautions or adaptation were effected’ (Road Accident Fund v Mbendera and Others [2004] 4 All SA 25 (SCA) at para 10, Chauke v Santam Ltd 1997 (1) SA 178 (A) at 183).
From a subjective perspective, the manufacturers of SDCs were constructed for the purpose of daily use on public roads, which may indicate that it is a motor vehicle. However, the multiple car accidents involving SDCs in the US, might be indicatory of SDCs not being a motor vehicle if contemplated under the RAF Act.
‘For the purposes of this Act a motor vehicle which is being propelled by any mechanical, animal or human power or by gravity or momentum shall be deemed to be driven by the person in control of the vehicle’. What is contentious here is whether the person in the vehicle can be deemed to be in control of an SDC and if so, under what circumstances.
According to HB Klopper the physical operation of a car itself is not enough to constitute the act of driving and must be paired with the requisite intention to drive (HB Klopper ‘Accidental starting of a motor vehicle and section 20(1) of the Road Accident Fund Act of 1996 – Oliphant v Road Accident Fund’ (2009) 72 THRHR 514 at 517-518). Meeting these requirements would prove problematic in regard to SAE 5 vehicles as the lack of normal mechanical components in such vehicles would suggest that the former requirement cannot be met and that such a vehicle cannot be driven despite the intention to do so.
If an SDC accident were to occur, the passenger’s or driver’s negligence can be examined under the common law rules. Alternatively, it can be argued that the failure of the passenger or driver to take control of the vehicle and prevent an accident would amount to another wrongful or unlawful act as contemplated by the RAF Act (see General Accident Insurance Co South Africa Ltd v Xhego and Others 1992 (1) SA 580 (A)).
Sections 19 and 21 of the RAF Act, after the 2005 amendment, prohibited the claiming for emotional shock under the RAF Act. However, the victim is still allowed to claim for emotional shock under the common law.
Suppose that while in an SDC, approaching an oncoming car under normal road conditions, the sensor does not detect the car, meaning the SDC is delayed in registering an impending collision with the other car and does not allow the passenger or driver to retake control of the SDC. For our purposes one can assume that the passenger or driver is not at fault, which leaves the liability of the manufacturer to be examined under s 61 of the CPA. Here the SDC did not function in the manner intended and the issues with the sensor rendered the SDC less safe than a person would reasonably expect under the circumstances, which points to a defect or failure in the SDC. The CPA imposes modified strict liability, meaning that the plaintiff does not need to prove negligence on the part of the manufacturer in order for the latter to be held liable.
The elements of conduct, wrongfulness, fault, causation and harm must be confirmed in the positive before the driver, passenger or manufacturer can be held liable.
Delictual common law is applicable in cases concerning normal motor vehicle accidents, and therefore, by extension there is a high possibility that these rules would be applicable in an SDC accident. What needs to be determined is when would these rules come into play. The most logical explanation being that after all legislative remedies are exhausted it would be most appropriate to turn to the common law (Melanie Murcott and Werner van der Westhuizen ‘The ebb and flow of the application of the principle of subsidiarity – critical reflections on Motau and My Vote Counts’ (2015) 7 Constitutional Court Review 43 at 46 – 48).
If one wants to hold a manufacturer liable based on delictual common law fault, the plaintiff must prove all five elements against the manufacturer. This would be difficult as there would be a need for an expert in SDCs and the plaintiff would need to possess an in-depth knowledge of the manufacturing process and supply chain. The former and the latter would not be readily available to a plaintiff and if it were, it would be highly expensive to procure. This would place the manufacturer at an undue advantage and leave consumers vulnerable (Carla Kriek The scope of liability for product defects under the South African Consumer Protection Act 68 of 2008 and common law – a comparative analysis (unpublished LLD thesis, Stellenbosch University, 2017) at 75; Jeffery K Gurney ‘Sue my car not me: Products liability and accidents involving self-driving vehicles’ (2013) 2 Journal of Law, Technology and Policy 247 at 265-266).
It might be that the above rules and provisions are inadequate and thus we might have to rethink our legal regulation of these cars if they are to be introduced on the public roads of SA. Hence the potential benefits to be gained from SDCs and potentially the Fourth Industrial Revolution will be negated without the requisite clarity on the above issues.
Charissa Chengalroyen BCom (Law) LLB LLM (Wits) is a candidate legal practitioner at Lawtons Africa in Johannesburg.
This article was first published in De Rebus in 2021 (April) DR 18.
