In Austria, liability for damages caused by autonomously or semi-autonomously driving cars follows the general rules of liability for damages. Austrian law distinguishes between liability for damages due to negligent (or intentional) behaviour and strict liability of the car operator or the car manufacturer per product liability law.
1. Liability of the driver for damages due to negligent (or intentional) behaviour while driving
If the driver does not follow the general rules of Austrian traffic laws or the specific laws governing his duties when driving a (semi-) autonomous car and causes an accident, he will be personally liable for these damages. Usually, insurance will fully cover the damages if other road users or pedestrians are harmed.
If at some point in the future, the law will not require the driver’s attention (“eyes off” or “mind off”), there will be little to no room for driver liability due to negligent behaviour.
2. Liability of the car operator
Austrian law provides for strict liability of the operator of any car, autonomous or not. The operator will be liable for any damages caused by the operation of the car, unless the car has been used without the operator’s consent. The operator remains jointly and severally liable if he failed to apply due care in preventing this use without his consent (e.g. a mother does not lock her car and her child secretly drives away and hits a pedestrian).
3. Liability of the manufacturer
The rules of product liability apply to software that is part of a physical product, such as a car. Thus, errors in the autonomous-driving software that cause malfunction or damages may lead to product liability of the car manufacturer.
The most interesting and important question in product liability law, however, is not whether the software used in a car suffered a defect. Since autonomous cars are based on AI algorithms that, in turn, are based on statistical methods, any AI to date inevitably produces a certain number of false results (i.e. false positives or false negatives). Thus, an AI system will sometimes “be wrong” in what it recognises and what it deducts from the data being fed to it. How these situations will be handled in regard to product liability is unclear, but our take is that this risk cannot be imposed on the car manufacturer. Eventually, the car operator will carry this risk.