INTRODUCTION:

The rise of driverless cars marks a revolutionary milestone in transportation technology, promising safer roads, reduced human error, and greater efficiency. However, this advancement introduces complex legal challenges, particularly in determining liability for tortious wrongs. Traditionally, the tort of negligence places responsibility on individuals whose actions or omissions foreseeably cause harm. The term negligence, was defined by the Supreme Court of Nigeria in the case Ighreriniovo v. S.C.C. Nigeria Ltd & Ors wherein the court, citing with approval, the decision of the United States Court in U. S. v. Ohio Bargo Lines, Inc., held that:

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“…negligence has been defined as the omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do. It is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm; it is a departure from the conduct expectable of a reasonably prudent person under like circumstances. U. S. v. Ohio Bargo Lines, Inc; 607 F.2d 624, 632 (Black’s Law Dictionary Sixth Edition page 1032). Perhaps I should still add it that negligence is a breach of duty of care which causes a loss. It is strictly a question of fact which must be decided in the light of its own facts.”

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With autonomous systems replacing human drivers, the legal framework for assigning fault becomes increasingly intricate.

Negligence traditionally requires the establishment of (a) duty of care, which is the legal obligation to avoid acts or omissions that can harm others, (b) breach of that duty of care, showcasing the defendant’s failure to meet the standard of care expected in similar circumstances and (c) causation, which is the direct link between the breach and the harm caused the plaintiff.

Human drivers have historically borne this responsibility, as the majority of collisions arise from human error or negligence. Courts assess whether a driver breached their duty of care, and if proven, the driver is held liable. Conversely, accidents, as a defense, can exonerate drivers who demonstrate that an event was unforeseen, unavoidable, and beyond their control.

 

However, with driverless cars, assigning liability involves examining the interplay of humans, technology, and manufacturers. When the “driver” is an algorithm, how do we define the duty of care, measure its breach, and establish causation? This would depend on the particular scenarios.

Collision Between a Human-Driven and a Driverless Car – International Perspective

When a human-driven vehicle collides with a driverless car, key questions emerge such as whether the human driver was negligent, or did the autonomous system malfunction? If the system failed, who bears liability—the car owner, the manufacturer, or the software developer? This is a critical question that calls for critical thinking, evaluation and resolution given the silence of traditional principles of negligence which has not addressed this issues and bearing in mind that driverless cars are only a recent development with no much decided cases to address cases of negligence. A few examples exists though such as the Uber Self-Driving Car Incident (2018) in Arizona, where a pedestrian was struck and killed by a self-driving car. Investigations revealed that the autonomous system failed to identify the pedestrian, compounded by the inattention of the human safety driver. The case raised complex issues of shared liability among the manufacturer, Uber, and the safety driver.

In China, the Civil Code could assign liability to the human driver if their negligence caused the collision. If the driverless car malfunctioned, liability might shift to the manufacturer under product liability principles whereas in India, the court would assess negligence based on the Motor Vehicles Act and common law principles. Manufacturers could face liability if the system’s defect directly caused the collision.

In most cases, the rule of thumb is that operators are ultimately responsible for accidents involving self-driving cars. In specific instances such as the Uber Self-Driving Car Incident above, liability may shift or be shared with the manufacturers.

 

Collision Between Two Driverless Cars

When two autonomous vehicles collide, the challenge of assigning fault intensifies. The question would usually be whether the liability should rest with the car owner, under the principle of vicarious liability or is the manufacturer accountable for system design flaws or software malfunctions? Assessing these scenarios involves evaluating whether the vehicles complied with safety protocols, whether the systems had inherent defects, or whether external factors contributed to the collision. It all depends on the causation actually.

Jurisdictions Ilike China and India might approach such scenarios differently. Under the China Civil Code, liability would depend on identifying the defective system, with the Civil Code providing a basis for product liability claims. The courts might also consider the owner’s responsibility for maintaining the vehicle.

In China’s legal framework for autonomous vehicle accidents, primary liability typically rests with the vehicle owner or operator, as established by the 2022 amendment to the Road Traffic Safety Law and reinforced by the 2021 Civil Code. This creates a strict liability system where the owner is responsible regardless of fault, though they may seek compensation from manufacturers if vehicle defects can be proven. India with no specific regulations, the courts might rely on general negligence principles to assess fault. We may assume that shared liability between manufacturers and owners could emerge as a solution.

 

Product Liability vs. Traditional Negligence:

Driverless cars blur the lines between traditional negligence and product liability. Manufacturers could face liability under product liability laws for system defects. However, owners may still bear responsibility for failure to maintain the vehicle or update its software.

In the Tesla Autopilot Cases (e.g., Walter Huang v. Tesla, 2020) , allegations of system malfunctions led to litigation over whether Tesla’s technology or user error caused fatal crashes. Such cases highlight the tension between product liability and negligence in the context of autonomous systems.

Vicarious liability is less common in Chinese tort law, but manufacturers could be held strictly liable for defects. Vehicle owners might face liability personally if they failed to update or maintain the vehicle’s system. Similarly, the Indian Courts could extend vicarious liability to car owners, especially if negligence in system maintenance is proven. The Consumer Protection Act of Indian could hold manufacturers accountable for defective products.

 

Vicarious Liability in Driverless Cars

Vicarious liability, which holds employers responsible for their employees’ actions, may extend to car owners. Could a driverless car owner be held liable for the actions of their autonomous vehicle, akin to an employer-employee relationship? Alternatively, should liability shift entirely to manufacturers, whose systems govern the vehicle’s actions? Your opinion is highly appreciated as there are no definite case addressing this issue. But the days ahead may be interesting, to see what the court will do when faced with these situations.

However, recent times have revealed that the United States of America has seen high-profile cases involving autonomous vehicles, such as the Uber and Tesla incidents . These cases demonstrate the evolving nature of negligence and product liability law in adapting to technological advancements. In the United Kingdom, the Automated and Electric Vehicles Act (AEVA) provides a progressive framework for autonomous vehicle liability. Under the Act, insurers are primarily liable for damages caused by autonomous vehicles, with recourse against manufacturers in cases of system defects. But for Canada, its negligence principles, rooted in Donoghue v. Stevenson emphasize duty of care. While driverless car cases are yet to surface, these principles provide a robust foundation for future litigation.

 

Europe on the other hand has taken proactive steps to regulate autonomous vehicles. For example, a German court in 2020 banned Tesla’s “Autopilot” branding for misleading claims, highlighting the importance of holding manufacturers accountable.

China’s approach to driverless cars cannot be ignored in this conversation as the republic has emerged as a global leader in AI and autonomous vehicle technology, with companies like Baidu and Pony.ai spearheading innovation. In 2022, China introduced the Intelligent and Connected Vehicle Management Standards, which establish guidelines for the testing and operation of autonomous vehicles. These regulations emphasize safety, data protection, and liability but leave room for interpretation in cases of negligence.

The China’s Civil Code serves as the primary legal framework for tort liability. Article 1165 of the Code outlines the general principle of liability for damage caused by fault, while Article 1166 of the Code addresses liability for harm caused by defective products. It is believed that these provisions could hold manufacturers accountable for system failures in driverless cars. For Example, in 2020, Baidu tested autonomous taxis in Beijing. While no major accidents were reported, incidents of software glitches raised concerns about liability. The lack of legal clarity prompted regulators to mandate detailed safety measures for future deployments.

The challenge with the China Civil Code is that it is vague. The laws do not explicitly address liability in collisions involving autonomous vehicles. Similarly, determining the respective responsibilities of manufacturers, owners, and operators remains complex under the Code. However, the courts and regulatory authorities can help shine some light on this area. In 2023 in Shenzhen, there was a court case involving a collision between a XPeng P7 operating in NGP (Navigation Guided Pilot) mode and another vehicle. The court ruled that the XPeng driver bore primary responsibility despite the automated system being engaged and that the manufacturer (XPeng) was not liable since the system was operating as designed

Another country in mind is India and its approach to driverless cars. India, the world most populous country, with its chaotic traffic conditions and unique road culture, presents significant challenges for autonomous vehicle deployment. In 2017, Indian company Tata Motors announced plans to develop autonomous vehicles. However, regulatory and infrastructural challenges have slowed progress, highlighting the need for comprehensive legal reforms.

Sadly, unlike the United Kingdom and the United States of America, India lacks specific laws for driverless cars but relies on broader legislations, such as the Motor Vehicles Act of 1988. The Artificial Intelligence and Robotics Framework proposed by NITI Aayog aims to provide a regulatory framework for AI applications, including autonomous vehicles.

Specifically as it relates to tort liability and assessment, it must be mentioned that India’s tort law is rooted in common law principles, focusing on negligence and strict liability. In cases of product defects, manufacturers can be held liable under the Consumer Protection Act . India’s roads are not yet equipped for autonomous vehicles, increasing the likelihood of accidents. There is no clear legal framework to address liability in collisions involving driverless cars in Indian.

 

In Nigeria, established common law principles guide negligence cases, as seen in the often cited medical negligence case of Ojo v. Gharoro. While driverless car cases have not yet arisen in Nigeria, the country’s legal system would likely adapt by blending traditional negligence and product liability concepts.

Nigerian Perspective on the Slow Adaptation of Driverless Vehicles

While the global world races towards the adoption of autonomous vehicles (AVs), Nigeria lags due to a combination of infrastructural and technological challenges. Unlike developed nations where the transition to driverless vehicle is underpinned by cutting-edge road networks and technological frameworks, Nigeria grapples with systemic issues that stifle innovation. This position is supported by the notorious fact that our nation’s infrastructure remains insufficient to support the integration of driverless cars. Potholed roads, unreliable electricity, and non-standardized road regulations create an environment unsuitable for such high-tech innovations. Driverless vehicles thrive on precision, relying on advanced sensors, GPS, and seamless communication networks. In Nigeria my beloved country, where basic infrastructure struggles to meet traditional vehicle needs, introducing driverless vehicles appears to be an uphill task.

Technology gaps further compounds the issue. Nigeria, although adapting quickly to technological trends in fintech and e-commerce, still lacks the local technological expertise required to develop and sustain autonomous vehicle systems. Most of the technological innovations in Nigeria are imported, which makes homegrown advancements in driverless vehicle technology almost non-existent. Additionally, the lack of comprehensive technology education and research within our universities limits the development of a pipeline of skilled engineers capable of championing such innovations.

Another hurdle is our dependency on fossil fuels. Driverless (Autonomous) vehicles are predominantly electric, but Nigeria’s economy and energy consumption patterns are heavily tied to oil. Without substantial investments in renewable energy and electric vehicle (EV) charging infrastructure, the large-scale adoption of s is unlikely.

These issues paint a rather grim picture of Nigeria’s readiness to embrace Autonomous Vehicle technology. While I acknowledge that Nigeria is making strides in technology adoption, particularly in fintech, our progress cannot yet be compared to that of global players.

What About Other African Nations?

Looking across Africa, some countries are positioning themselves better for the Autonomous Vehicle revolution. Kenya, for instance, is rapidly modernizing its infrastructure and embracing technology startups that focus on mobility. Ghana is investing in smart city projects that include plans for EVs, although the journey remains in its infancy. Angola, with its significant oil revenues, is exploring diversification strategies, including renewable energy projects that could support Autonomous Vehicle adoption.

Though these nations are not global frontrunners, their efforts highlight a growing awareness of technological advancements and the opportunities they bring. Nigeria can learn from these examples by prioritizing infrastructure development, creating technology incubation hubs, and fostering public-private partnerships to attract global players in the Autonomous Vehicle space.

In Africa: Where Does Liability Lie?

The question of liability for tortious wrongs becomes even more complex within an African context. In Nigeria, existing tort laws are largely traditional and do not address the nuances of Autonomous Vehicle technology. For instance, in the event of an accident involving a driverless car, determining liability, whether it rests on the manufacturer, the software developer, or the owner, will be a significant challenge. Similarly, other African nations face this dilemma but are exploring legal reforms to address emerging technologies. Ghana, for example, is reportedly drafting legislation for technology and AI , which could serve as a foundation for addressing Autonomous Vehicle liability issues.

Ultimately, the conversation around liability for tortious wrongs in Nigeria and Africa needs to go beyond theoretical discussions. It should account for the region’s unique challenges while seeking innovative ways to adapt global solutions to local realities.

Insurance Implications of Driverless Cars

The introduction of driverless cars presents profound challenges and opportunities for the global insurance industry, particularly in terms of risk management, liability structures, and coverage models. As countries and regions like the United States, United Kingdom, Europe, Canada, China, India, and Nigeria develop and adopt autonomous vehicle technologies, the insurance industry must evolve to address new dynamics of risk, responsibility, and regulation. Key global insurance implications include:

a. Product Liability Insurance: As vehicle manufacturers and technology providers take on more responsibility for accidents, product liability insurance will become a major consideration for companies involved in the design and production of autonomous cars.
b. Cybersecurity Insurance: Given that autonomous vehicles are powered by complex software and are highly connected, the risk of hacking and cyberattacks is a significant concern. Insurers may develop specialized policies to cover cybersecurity breaches, data theft, and system failures.
c. Accident and Injury Coverage: Insurers will have to account for new types of accidents, including those caused by system failures, software glitches, or external cyber threats, which may not be covered under traditional auto insurance.
d. Policy for Mixed Traffic: In regions where autonomous and manual vehicles share the road, insurers will need to consider hybrid models of coverage that protect all parties in the event of a crash.

In the United States of America, the insurance industry is facing the dual challenge of managing traditional automobile insurance while anticipating the shift toward driverless technology. It is interesting to note that the National Highway Traffic Safety Administration (NHTSA) and other regulatory bodies are working to define standards and liability laws related to autonomous vehicles. As these vehicles move from Level 3 (conditional automation) to Level 5 (full automation), liability will increasingly fall on the manufacturers, software developers, and technology companies, shifting away from individual drivers. This could lead to new insurance products emerging such that manufacturers could face the need for products covering defects in technology, and insurers might develop policies that cover cyber risk and system failures. We could also see a reduction in premiums for drivers. Since it is arguable that driverless vehicles could reduce human error, personal auto insurance premiums could decrease, but manufacturers’ insurance premiums could rise due to liability for malfunctioning technology, at least in the United States.

The United Kingdom (UK) is a leader in testing autonomous vehicles, with an emphasis on ensuring they meet safety standards. UK regulators are expected to adapt liability laws to reflect the change from human drivers to autonomous systems. The UK insurance market will likely face a shift from driver-centric to vehicle-centric insurance. Insurers may offer policies that focus on the car’s technology rather than the individual driver. It is important to mention for completeness that in the event of an accident, the focus will shift to the manufacturer, software provider, or even a third-party service provider managing the vehicle’s systems, at least in the UK.

Across Europe, there is a harmonized approach to insurance and regulation, with initiatives such as the EU’s Vision 2030 for self-driving cars . The region will likely see a transition to comprehensive vehicle insurance. Instead of the current system where personal liability is a major factor, insurance products may shift to cover technology failures, and product liability insurance will become more prominent. There could also be an increase in Government regulations on liability. European Union member states will likely enact clear regulations to determine who bears responsibility in the event of an autonomous vehicle accident, whether it’s the manufacturer, software provider, or third party. We are watching.

Canada has already begun exploring the implications of driverless cars through pilot projects in cities like Ontario. The regulatory framework in Canada will likely evolve to address insurance coverage for technology failures. Insurers in Canada will need to address the unique risks posed by the software, sensors, and AI systems that power autonomous vehicles. I foresee a shift in liability similar to the U.S. Put differently, liability in tort of negligence for driverless cars in Canada is likely to gradually shift away from the individual driver to the manufacturer or technology provider. Insurance models may evolve to include policies that cover these entities.

As for the People’s Republic of China, a global leader in technology and the development of autonomous vehicles, she is keen on developing smart cities and infrastructure that support self-driving cars. The insurance implications in China could include a deliberate focus on cybersecurity and AI. As autonomous vehicles depend heavily on AI, cybersecurity, and data integrity, insurers may need to provide specialized coverage against hacking and software failures. Additionally, manufacturers and software developers will likely bear more responsibility, and insurance products will be tailored to address emerging risks related to both technology failures and public safety.

In India, the rise of autonomous vehicles will require insurance models to adapt to the complex landscape of road safety, infrastructure limitations, and varying levels of adoption across the country. India’s road conditions and traffic patterns present unique challenges for autonomous vehicles. Insurers may need to account for the possibility of autonomous vehicles malfunctioning due to environmental factors. Additionally and with a large percentage of the population still dependent on traditional vehicles, insurance models may need to bridge the gap between autonomous and non-autonomous vehicle insurance, ensuring seamless coverage in mixed traffic environments.

In Nigeria, the introduction of autonomous vehicles will come with significant hurdles, including inadequate infrastructure, regulatory gaps, and a lack of public trust in the technology. The insurance implications in Nigeria might include liability Challenges. Due to the lack of clear legislation on autonomous vehicle accidents, liability may remain ambiguous, leading to confusion regarding who is responsible in the event of an accident.

Furthermore, as the technology is gradually adopted, there may be challenges in accessing affordable and comprehensive insurance policies for autonomous vehicles, especially given the high risk of accidents in developing countries due to road conditions and regulatory shortcomings.

Conclusion

Driverless cars challenge traditional legal principles, requiring innovation in liability frameworks. While they promise safer roads and reduced human error, the potential for collisions due to system failures or unforeseen circumstances cannot be ignored.

Policymakers must craft liability systems that balance the interests of vehicle owners, manufacturers, insurers, and the public. The journey toward autonomous vehicles demands a reimagining of tort law to ensure justice for all parties while fostering technological advancement.

The journey to a driverless future requires not only technological advancements but also robust legal and ethical frameworks. Are these nations ready to navigate this complex terrain? Only time will tell.

What is more, the implications of autonomous vehicles for global insurance markets are vast and will require new regulatory frameworks, specialized coverage options, and innovative risk management strategies. While different countries face unique challenges based on infrastructure, technology readiness, and regulation, the insurance industry as a whole will have to be proactive in adapting to the new risk landscape that autonomous vehicles present. As technology advances and autonomous vehicles become more mainstream, insurers must work with manufacturers, governments, and tech companies to develop comprehensive policies that ensure safety, fairness, and coverage.

The question remains: Are our legal systems prepared to navigate this uncharted territory? Let’s continue this conversation.

Prepared by:
Brown Osarenkhoe, MCIArb (UK)
Managing Partner, Brown, Okeke & Kalejaiye
Tel. +2348164247362
brown@boklegalllp.com