You will be provided with a reference and some statements. Please determine whether each statement is 'supported', 'unsupported', or 'unknown' with respect to the reference. Please note:
First, assess whether the reference contains any valid content. If the reference contains no valid information, such as a 'page not found' message, then all statements should be considered 'unknown'.
If the reference is valid, for a given statement: if the facts or data it contains can be found entirely or partially within the reference, it is considered 'supported' (data accepts rounding); if all facts and data in the statement cannot be found in the reference, it is considered 'unsupported'.

You should return the result in a JSON list format, where each item in the list contains the statement's index and the judgment result, for example:
[
    {
        "idx": 1,
        "result": "supported"
    },
    {
        "idx": 2,
        "result": "unsupported"
    }
]

Below are the reference and statements:
<reference>
Introducing Advanced Driver Assistance Systems: Some
Legal Issues

Rob van der Heijden*, ** and Kiliaan van Wees**
*
Nijmegen School of Management
Nijmegen University
Nijmegen
The Netherlands
**

Faculty of Technology, Policy and Management
Delft University of Technology
Delft
The Netherlands
EJTIR, 1, no. 3 (2001), pp. 309 - 326

Received: September 2001
Accepted: November 2001

The introduction of Advanced Driver Assistance Systems (ADAS) in road traffic induces
many complex questions. One of them is whether or not present legislation frameworks are
able to accommodate a smooth development and market implementation of ADAS. This is
strongly related to the aspect of traffic safety. The various aspects related to this issue are
categorised based on an exploration of the functionality and possible failure of ADAS. Next,
some problem categories are more in-depth elaborated. In particular attention is paid to the
need for establishing safety requirements to the design and marketing of ADAS as well as the
issue of liability regulation. It is concluded that decision making on safety requirements
mainly takes place at an international level. However, so far hardly any requirements
regarding ADAS have been laid down in compulsory rules yet. It is further concluded that
current legal frameworks in both the fields of vehicle safety standards and liability provide
for (some) flexibility towards technical developments regarding ADAS, i.e. these frameworks
do not contain many ‘hard rules’ obstructing the introduction of ADAS. Concerning the
safety regulation of ADAS it is argued that the speed of technological developments and the
innovative and specific nature of ADAS technology generate various tensions. These tensions
should have consequences for the weight that is put on public and private intervention
mechanisms and the relation between preventive safety standards and reactive regimes such
as product liability and post-market controls.

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1. Introduction
There is much interest from automotive industries, drivers, fleet owners and public transport
authorities to introduce advanced driver assistance systems (ADAS) in road traffic. These
systems refer to electronic devices for the support of drivers in performing various driving
tasks (such as merging, speed control or lane keeping). With respect to these driver tasks,
examples of such systems are speed-headway keeping, front or side collision avoidance
systems, lane keeping systems, systems for vehicle control or safety readiness. The
technology is generally based on the concept of collecting data on the vehicle behaviour and
its direct environment (sensor function), analysing patterns in these data while matching
these patterns with decision rules (intelligence) and activation of certain driver support
functions (Hall, 1995). These support functions might bear the nature of informing the driver
by giving some signal (e.g. on speed limit exceeding), assisting the driver (e.g. by giving
some contra-power on the steering wheel) or overtaking control (e.g. advanced cruise
control). The more mature systems that have been developed and implemented at the market
are based on purely in-car technology (e.g. advanced cruise control). However, more
complex support systems (such as intelligent speed adaptation) require some system
components outside the vehicle, for instance for precise vehicle positioning. Therefore it is
expected that future advanced driver assistance systems will be increasingly based on a
combination of in-car and infrastructure based technology. This will significantly increase
the complexity of the development and implementation of these systems. However,
expectations about the advantages of these systems for traffic performance are high
(improved road capacity use, more safety, less emissions) (see e.g. Broughton, 1994; Kanaris
et. al, 1997). Therefore, this complexity does not seem to be a reason for automotive
industries nor public authorities to slow down on the avenue of research, development and
market implementation, in particular since these efforts are embedded in the broader
application of Intelligent Transport Systems technology (Van der Heijden & Marchau, 2001).
The complexity of advanced driver assistance systems evidently involves the technical
dimension. First, when these systems are to be used in complex traffic situations (such as in
urban traffic or on secondary roads), high performance requirements are put to the situation
recognition by the implemented intelligence. This implies an increase of data to be collected
and speed of pattern recognition. In particular when the support function is based on the
interactive use of in-car intelligence and communication with some infrastructure facilities
outside the car (e.g. magnetic needles in the road, roadside sensors or satellite
communication) this becomes a highly complex technological challenge. A failure-proof
approach to carrying out this task is yet to be found (Naab & Hoppstock, 1995). As Ward
(1997, p. 75) argues: “the most difficult technical challenge facing this new systems is less
the sensors themselves than this job of interpreting what the sensor sees”. Another aspect of
technical complexity is the reliability of the computer software in relation to the issues of
electromagnetic interference and mutual unforeseen interaction between different electronic
systems. There is empirical evidence that due to such mechanisms systems might be
activated (e.g. brakes) such that driving performance is negatively influenced. Finally,
including more and more complex ADAS requires transparent man-machine interfaces. It
should be completely clear for the driver when and how to use various systems. Again, recent
research indicates that misuse is easily to be generated (e.g. Hoedemaeker, 1999).

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Partly due to the growing awareness in recent years about the technical complexity
increasingly attention has been asked for the non-technical complexity of the development
and implementation of ADAS (e.g. Levine and Underwood, 1996; Marchau & Van der
Heijden, 1998; Marchau, 2000). Here also it is referred to a variety of issues. A first issue
concerns the uncertainty on the impacts of the large-scale application of ADAS on the traffic
performance. So far, many of the positive expectation are not based on empirical evidence,
but on small-scale experiments. For instance the study by Minderhoud (1999) on advanced
cruise control indicates that a significant increase of road capacity is only to be reached under
very strict conditions on market penetration and use. Further, doubts on the safety impacts of
various systems have been articulated (Marchau et. al, 1999). Moreover, related to the
technical complexity discussed before, the applicability of ADAS seems to be limited to.
The second issue concerns the question how limited applicability and uncertainty on impacts
match with public policy goals and influence market adoption. Do potential users consider
the price – quality relationship satisfactory for purchasing these systems? What will be the
preference of drivers with respect to the acceptable degree of automation? Will driver
support systems take the form of autonomous operating technology, eliminating the
responsibility of the driver? Or is it imaginable that some of the driver support systems are
based on warning devices and others not?
Finally, the issue of liability is of increasing relevance. In the case of assisting and
autonomous operating ADAS, the liability position of drivers linked to accidents is
questioned (Syverud, 1993; Janker, 1995; Van Wees, 1999a,b). Another important issue
raised, which may also be linked to the issue of liability, is that of specifying quality
standards, certification procedures and the position of regulatory authorities and production
industries.
This article aims at elaborating on this issue of legal regulation. It is based on recent research
performed as part of a larger research program on the technology assessment of automated
vehicle guidance technology (Van der Heijden & Wiethoff, 1999). The research project aims
at answering the question to what degree the existing European legal framework is able to
smoothly accommodate developments in the field of ADAS. The reason to pay serious
attention to this issue is because some authors have argued that perhaps current liability
regulation might be a ‘show stopper’, while others have stressed its potential decelerating
impact on market implementation (e.g. Randal Ayers, 1994; Burris, 1996; Feldges, 1997).
The structure of this article is as follows. First, the issues on this subject will be structured in
section 2. Next, in section 3 the issue of safety requirements to automotive products’
development will be addressed. Section 4 than goes into detail with respect to the issue of
liability. Next, section 5 presents some discussion on how to deal with the information
presented in the previous sections: what are basic dilemmas? The article ends with
conclusions in section 6.

2. Structuring the issues
In the introduction a number of developments have been briefly described. It has been
indicated that various uncertainties exist with regard to these developments. Some of these
uncertainties generate legal questions that might lead to slowing down the speed of ADAS
implementation.

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Dominant in the discussions on these legal questions is the issue of liability in case of
accidents. In the current situation without large-scale use of ADAS, accidents are mainly
evaluated in terms of responsibility of the involved road users. In that view accidents
generally are the result of either non-intended or purposeful deviation from generally
accepted rules. Once these human errors have been reconstructed in the context of accidents,
they might serve as a reason for qualifying certain road users as responsible for the
occurrence of the accident (’name and blame’). Hence, in current practice also liability
questions regarding traffic accidents mainly focus on the driver or the owner of the vehicle
that 'caused' the damage. With the introduction of ADAS, this situation may change. If an
accident can (also) be traced back to an (alleged) 'malfunctioning' of the vehicle, than not
only the question is raised to what extent the car driver/owner of the vehicle can be held
(legally) responsible, but also which other persons such as manufacturers and road
authorities may be liable for the damage. These questions are most prominent in case of
assisting and autonomous operating ADAS. In case of informing devices the driver simply
receives more or other information to take his/her decision. An example is the already
frequently used in-car route guidance system helping the driver to find his/her route more
easily. It should be stressed however, that these systems may create certain dangers too.
Wrong information to the driver might cause uncertain driver behaviour, hence might create
a non-adequate situation awareness and consequently generate driver errors.
The question of changing of responsibilities more directly occurs in case of assisting and
autonomous operating ADAS. An example is the limitation of maximum speed by the use of
an Intelligent Speed Adapter (ISA) that automatically reduces the speed up to the local limit.
The situation might easily occur that the ISA is not informed of the fact that in certain
situations the maximum speed limit is temporarily reduced because of special circumstances
(e.g. road works). A driver who heavily relies on the ISA might therefore more or less
unconsciously exceed speed limit. Once involved in an accident, the role of the ISA in
relation to the driver’s behaviour might be questioned. Another example is the fact that the
advanced cruise control of certain busses in Eindhoven, the Netherlands, got activated due to
electromagnetic interference causing at least one serious accident with casualties.
Finally, assisting and autonomous operating ADAS also add new dimensions to the
relationship between drivers and road management authorities. Of course, in the present
situation the road manager plays a significant role already. This authority is responsible for
providing adequate road infrastructure complying with generally accepted standards for road
design, as well as means to accommodate traffic in a safe way (such as traffic light
installations). In respect to certain ADAS the road manager is likely to get additional
responsibilities; in the above-described speed control situation for instance the need for
providing up-to-date information on temporal speed limits. This might imply the need for
adding certain facilities to the infrastructure (such as magnetic nails or infrared
communication sensors) and the obligation to maintain on these facilities. But even when
drivers and road managers perform well, the performance of certain ADAS becomes
questioned. Do these systems always do what they are supposed to do in certain
circumstances (functional reliability)? Are these systems functional robust and can they cope
with unknown situations? Are the users well instructed when and how they should use the
system? How does one prevent drivers to over-estimate the functionality of the system in
use? Fledges (1997) refers to an experience with anti-block systems (ABS). A number of
users were mistaken in their expectations that the system would shorten the braking distance,

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which resulted in shorter speed-headway following causing more accidents than with cars not
being equipped with such a system. Hoedemaeker (1999) describes how car drivers in an
experiment have wrong expectations on the assisting function of advanced cruise control,
causing dangerous traffic situations. In case of certain accidents where ADAS is involved,
the focus might switch from the driver’s responsibility for human errors to the functional
quality of the applied system and hence the product liability of the producing industries.
Questioning the responsibility of the producing industries brings us to switch the focus on
the quality of the process of ADAS development, production and marketing. This implies
attention for issues of specification (and standardisation) of functional requirements, quality
testing, certification and providing for adequate selling conditions. Evidently, the aim is
prevention of introducing not well performing ADAS on the market. Producing industries
have a primary responsibility for that. However, regulatory authorities have a serious
responsibility too. Which quality standards can be applied? Are these standards the same for
every market (e.g. different states)? Can uncertainty due to limited empirical knowledge on
the impacts of ADAS on the traffic system satisfactorily be transferred into product
specification requirements or should the focus lie on process requirements for production,
certification and marketing? In automotive industries, various regulatory regimes exist
involving state-based as well as international rules. Consequently, we deal with a complex
regulatory environment facing a new technology with relatively unknown impacts.
Summarising, a variety of legal aspects of ADAS emerge. Important questions focus on the
issue of creating safety and arranging legal responsibility. It is clear that all parties involved
such as drivers, vehicle owners, production industries and road authorities, have a basic
responsibility for safe traffic and the use of ADAS therein. However, the innovative nature of
the technology yielding new dimensions in the relationship between drivers, vehicles and the
driving environment generates specific questions related to legal responsibilities for safety
and liability for accidents. Uncertainties about legal responsibilities and consequences for
regulatory regimes may hamper product development and market introduction of these
systems. In the rest of this article some of these legal issues will be further explored. The
focus will be on safety standards and liability of motorists and manufacturers.

3. (Establishing) safety requirements and ADAS development
The development of motorised vehicles has always been determined by pre-specified safety
requirements. Evidently, this is because of the need to prevent for introducing vehicles that
do not meet a minimum safety level. Safety requirements focus on conditions for the
construction and performance level of vehicles and included equipment. This vehicle
regulation framework is increasingly the result of international deliberation and decision
making. The main objective of international harmonisation of vehicle safety standards is the
creation of open markets. Consequently, the national influence is strongly limited.
A first to be mentioned international platform is the Working Party on the Construction of
Vehicles (WP29) of the United Nations Economic Committee for Europe (UN/ECE). This
Working Party was installed in 1952. In 1958 an agreement was established to facilitate the
adoption of uniform conditions of approval and the reciprocal recognition of approval for
motor vehicle equipment and parts. Based on this so-called 1958 Agreement, a variety of
specific rules has been elaborated and accepted. Individual states can accept these rules

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voluntarily; they do so by not officially objecting to the proposed specific rule. Until 1995,
given the European focus of the Working Party, the states involved are European states.
These activities within the UN/ECE therefore consequently bore a European character. NonEuropean countries such as the USA and Japan had the status of observer. In practice
however, these countries actively participated in the preparatory deliberations of the rules.
This situation has changed in 1995 with the revision of the 1958 treaty. Since 1995 nonEuropean countries is offered the opportunity to become full member of the UN/ECE. For
example Japan and Australia have done so in the meantime. However, Canada and the USA
did not because of their own national systems of regulation of vehicle safety requirements.
From an economic point of view, this is not a very desirable situation, since during the
nineties of the past century there is a strong tendency to open global markets. And the more
automotive markets are opened, the stronger the need for global harmonisation of safety
standards. Different regulatory regimes in different global areas do not match to this idea.
Therefore, Europe, the USA and Japan have invested in co-operation after 1995 to come to a
worldwide agreement on vehicle requirements. This resulted in a new treaty (the 1998
Global Agreement) in addition to the 1958 Agreement and the change of WP29 into the socalled World Forum on the Harmonisation of Vehicle Regulation.
The second important international platform for European countries with regard to
establishing vehicle requirements is the European Union. The work of the EU in the field of
automotive safety requirements has been strongly influenced by the aim of the EU erection in
1958: the creation of an open market within Europe. Regulation at EU level is therefore
strongly focused on eliminating market barriers at state level and stimulating free trade and
persons and capital flow within Europe. National differences in vehicle safety standards
easily works as a barrier for free trade in motorised vehicles, which is strengthened by the
fact that various European countries have strong economic interests in automotive industries.
Because of the economic value of the automobile industry harmonisation of vehicle
requirements within the EU was one of the early priorities (Swaak, 1999). This was done
through the drafting of European Directives. Member states have the obligation to implement
these directives in their national laws. Difference is made between framework directives and
specific directives.
For ADAS development, in particular framework Directive 70/156/EEC is important,
because it lays down the procedure for type approval and conformity assessment
(certification) of motorised vehicles. This in 1970 accepted directive indicates that a whole
vehicle or vehicle components, certified in one of the European states (based on compliance
to European safety requirements), cannot be excluded from markets of other states unless
there is sufficient evidence that it would be seriously threatening traffic safety. Based on this
framework directive a large number of specific directives have been drafted laying down
requirements for different aspects and components of motor vehicles. For one category of
motor vehicles (luxury cars) the harmonisation process has been completed. It means that for
all relevant aspects and components of this type of vehicle, directives have been drafted and
a European type approval for the whole vehicle can be granted. Consequently, if a vehicle or
components have been type approved in one member-state it will be very hard for another
member-state to reject the admittance of such a product for their domestic market.
In this context it should be mentioned that the general directive on vehicle regulation has
included a procedure for a more flexible response to fast technological developments, given
the fact that formal regulation takes a long period. The procedure introduces a special

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committee with representatives of EU member states, advising on the acceptance of certain
new technological developments not in conformity with existing standards. In case new
technologies are accepted, this should also lead to changes in the specific directives.
Evidently, for such technologies as ADAS this committee might play an important role. On
the other hand, the procedure is criticised for its lack of democratic control, more or less
excluding the European Parliament from the decision making process. Furthermore this
approach may lead to ‘ad hoc’ regulation. For these reasons setting up new directives may be
preferred.
With regard to the process of setting vehicle safety standards it is also important to notice
that the actual rulemaking is likely to shift more and more in the direction of the above
mentioned UN/ECE committee. This is due to the fact that the EU as a supra-national
political and administrative organisation has become member of the UN/ECE in 1997.
Although experts from the different member states may still take part in the deliberations
within UN/ECE, the EU remains to keep the formal voting power on draft regulations.
The preceding brief overview indicates that the specification of vehicle safety requirements
is heavily dominated by the work of international authorities. For European states the EU and
the UN/ECE are important. The importance of specific state law is reducing rapidly. Opening
international automotive markets implies harmonisation of requirements at an international
level. Consequently, ADAS development and implementation is also regulated at these
decision levels. The fact is however that so far no specific directives for ADAS have been
developed within Europe or can be accepted from the work by the UN/ECE committee. In
other words: no clear and formally binding ADAS safety requirements have been specified
yet. Nevertheless, debates have started. In UN/ECE discussions have been started and some
drafts have been made with respect to complex electronic systems, Advanced Cruise Control
and Intelligent Speed Adapters. At EU level the European Commission recently (2000)
published a recommendation with regard to the safe and efficient in-car application of
information and communication technology in motor vehicles. This (non-binding) document
contains a “Statement of Principles on human machine interface for in-vehicle information
and communication systems” but bears an explorative character. It calls upon the automotive
industry to work on a mutual agreement on applying certain principles of human-machine
interface. In fact, it can be interpreted as an attempt to establish ‘soft’ law.
This cautious EU approach is to be explained by the fact that we face a new technology and
unknown effects of applications of this technology. There exists considerable uncertainty and
limited knowledge that appears to be a too fragmented and soft basis to specify ADAS safety
requirements. Moreover, the speed of changes in the technological possibilities is high. The
absence of specific ADAS safety standards invites ADAS manufacturers to seek for
certification of their product in a European state that is most suitable for them. In addition,
European directives to a high degree assure the further access to other state markets. This
mechanism has been qualified as forum shopping. The lack of clear directives and the
possible threat of forum shopping might at least partly be solved by applying what is called
the new approach. This approach has been implemented in general EU regulation mid ’80
and focuses on product regulation dominantly based on the operational work of
normalisation institutes. However, vehicle requirements have so far not been made subject of
this new approach. It is therefore clear that we still have a long way to go before a
convincing set of safety requirements for ADAS has been internationally agreed upon.

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4. Liability issues regarding ADAS
In general, automotive industries, public authorities and drivers all have a high sense of
responsibility for realising safety in traffic. This implies the design and construction of safe
vehicles including the in-car equipment. It further implies the construction and maintenance
of functionally transparent road networks and effective traffic flow management systems.
And it implies cautious driving behaviour (on average). Notwithstanding these efforts,
accidents might happen. In future an increasing number of accidents will be (partly) based on
the use of ADAS. In those situations, there is the question of responsibility and the question
of liability. This section deals with this latter issue. The issue of liability refers to an
extended field of sub-issues. Since this is a complex issue, as was the case in the previous
section with safety requirements, only some mainlines can be described (see for more details
e.g. Van Wees, 1999b).
4.1 Liability of involved road users
Thinking about liability for ADAS-related accidents it is important to realise that in general,
protection of traffic accident victims is an important goal of traffic accident liability law
(Tunc, 1998). This rationale not only induced most European legislators to provide for
special liability rules but is also expressed in systems of mandatory vehicle insurance.
Victims can claim their damages directly from the insurance company and the insurance
companies involved mutually settle their positions in a certain case. The mandatory
insurance system protects both the liable owner/keeper of the motorised vehicles and the
victims of the traffic accident. It guarantees that, in case of liability, sufficient financial
resources are available to compensate damage.
When looking at existing traffic accident liability rules in different European countries,
roughly three types of accident compensation regimes are identified: fault liability, strict
liability and road traffic insurance. We will respectively discuss these regimes.
Fault liability refers to general rules for personal liability, based on generally accepted
notions of behaviour of citizens: “be a careful citizen, mindful of your duties towards
yourself and your fellow citizens”. Negligent behaviour or purposeful violation of this rule is
a requirement for liability, implying that there will be no liability if a careful driver could not
have prevented the accident. In the context of failing ADAS or improper use of ADAS,
directly or indirectly causing an accident, negligent behaviour might become more difficult
to prove. The driver basically has more possibilities of an absence-of-fault defence. This is
rather obvious in case some ADAS system fully takes over a certain drivers’ task leaving no
room for corrective action from the driver. Of course more discussion on the validity of such
a defence is possible in the context of assisting systems leaving the driver some freedom of
operation. Whether an absence-of-fault defence will be successful then depends on the
special circumstances and facts of the case, in particular the question whether the driver
could have ‘reasonably’ avoided the accident. It is the judge who has to decide on that. In
The Netherlands, the tendency is that judges take the ‘perfect’ driver and not the ‘reasonable’
driver as the benchmark for deciding whether a driver is legally responsible for the accident.
The dangers involved with motorised traffic have induced most European legislators to
provide for special, more victim-friendly, liability rules additional to the general fault
liability rules. Most of these additions explicitly put liability directly on the owner or keeper

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of the vehicle, even when there is no evidence for faults. Therefore, this category of rules is
called the strict liability regime. For instance in The Netherlands, the owner or keeper of the
vehicle is liable for the damage caused by the vehicle unless it is assumable that the accident
can be attributed to ‘force majeure’. This means that there will be no liability in case the
accident is caused by external factors. Most European countries have strict (or no-fault)
liability rules although significant differences can be identified in terms of the protection of
categories of victims and damage (De Haas & Hartlief, 1998). In the Netherlands, in case of
an accident with motorised road users involved, only non-motorised road users (cyclists and
pedestrians) can put liability claims on the owner/keeper referring to strict liability rules. In
other countries also passengers (e.g. Belgium) and even drivers (e.g. Spain, Denmark,
France) are protected by the strict liability regime. Differences also exist with respect to the
degree to which a ‘force majeure’ defence is possible. For instance The Netherlands and
Germany allow for such a defence by owners/keepers. However, the use of in-car driver
support systems and their possible failure is not to be considered as a ‘force majeure’. In the
case of the use of ADAS based on the communication between in-car and infrastructure
system components (e.g. Intelligent Speed Adapter) owners/keepers might successfully
defend themselves by referring to failing external components of the supporting system.
The third important accident compensation regime is that of traffic insurance. Sweden is the
only European country in which such a system exists. Under a regime of traffic insurance,
the system of ‘first party’ insurance is introduced which means that victims in each vehicle
involved do obtain compensation directly from the vehicle’s insurer. In addition nonmotorised road users keep protected by the system of third party liability. This regime
implies that damage caused by ADAS-related accidents, will be automatically compensated
by the insurer of the involved vehicle.
Summarising, in Europe different regulatory regimes exist concerning liability of drivers and
car owners. Whether and under which circumstances these persons can be held liable for
ADAS related accidents depends on the details of the liability system in question. In short
terms, under fault liability regimes drivers and vehicle owners will not be liable if they acted
as a careful person. This means that if –as will be the case with ADAS – negligent behaviour
in terms of inadequate driver reaction or improper maintenance could become obscured,
liability of the driver or owner will be harder to establish due to the possibility of an absenceof-fault-defence. Consequently, the use of ADAS will create uncertainty about legal
responsibility. This may increase the number and complexity of lawsuits. This is especially
true for systems that interact with the infrastructure or other vehicles. It seems that these
consequences are hardly acceptable considering the social desire to protect traffic victims. At
least ‘innocent’ third parties need more protection (“motoring should pay its way”).
In most European traffic liability regimes owners/keepers of motorised vehicles are to some
degree subject of non-fault liability regimes. Under these regimes it will be harder for the car
driver/owner to avoid liability although, especially in case data exchange with the
infrastructure or other vehicles, some possibilities may still exist. This is in conformity with
the rationale of victim protection. However, these liability consequences may diminish
public acceptance among motorists. Insurance companies can play an important role in this
field. Not only can they promote the (safe) use of ADAS through their premium setting and
acceptance policy, they can also establish that accidents that must be attributed to the
malfunctioning of ADAS will not have premium consequences for the insured motorist
(from ‘no claim’ to ‘no blame’).

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4.2 Product liability
When in the analysis of the causes of accidents the role of ADAS becomes increasingly
questioned, the issue of product liability comes to surface. In Europe the law on liability for
defective products historically developed on a national level. In 1985, however, a general
European Council Directive on liability for defective products was introduced (85/374/EEG).
According to this Directive, the producer shall be liable for damage caused by a defect in his
product. This principle relieves the injured party from proving negligent behaviour of the
manufacturer (according to the rule underlying the earlier discussed fault liability regime).
The Directive has led to a significant harmonisation of liability for products throughout the
EU member states, although still national differences in product liability laws exist. First of
all, this is due to the fact that the Directive includes a few optional provisions, where the
member states can decide whether or not to implement them in their national law. Moreover
the Directive is limited in its scope. For instance, it only applies to cases of death and bodily
injury as well as compensation for damage done by the product to another thing, which is
furthermore intended for private use. This implies that the European Directive is for instance
not covering damage to trucks (not intended for private use) nor to the damaged product
itself (the car that was damaged due to e.g. a failing cruise control). Such limits and
differences in application regimes do give some space to national liability regimes, although
derogation from the European Directive is not allowed. Disputes concerning the
implementation and application of the Directive are to be decided on by the European Court.
The European Directive considers a product to be defect when it does not provide the safety
a person is entitled to expect taking all circumstances into account. These circumstances
include (a) the presentation of the product, (b) the use to “which it could reasonably be
expected that the product will be put”, and (c) the time when the product was put into
circulation. Hence, the starting point is the consumer expectation and the focus is on safety
instead of inadequacy for intended use.
The first circumstance, the presentation of the product, is in particular relevant in the context
of innovative technologies and products, such as ADAS. Inadequate presentation of ADAS
or instructions on its use can make the system ‘defective’. Manufacturers can influence the
safety expectations of consumers (and thereby their liability risk) both positively and
negatively by the presentation of the product. Manuals, advertisements or other relevant
public information sources may influence consumers’ expectations. Since users have no
experience with newly introduced ADAS, they are not very well able to assess the dangers
involved. For instance, experience with Cruise Control and Anti-Block Systems (ABS)
indicate that in a number of cases drivers have been mistaken in their expectations about the
functionality of these systems (Feldges, 1997). Drivers expected shortening of braking
distance by ABS, causing more accidents with cars equipped with ABS than with cars
without. It is therefore highly important that potential users understand the operational
characteristics of the systems in order to recognise the inherent dangers of using it in traffic.
The driver has to be clearly informed about the functional limitations of the system and the
potential risk of unintended use. This is in particularly relevant given the increasing
functional complexity of ADAS. And even when the potential danger of the system has been
made clearly recognisable, this does not exclude the system from being qualified as
defective. Warnings can not neutralise the defectiveness if the lack of safety could easily
have been avoided through an alternative design that was economically feasible (Dommering

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– Van Rongen, 2000). It is the manufacturer’s primary duty to market a safe product and he
can not arbitrarily assume one specific pattern of use as ‘normal’.
This brings us to the second circumstance mentioned by the European Directive: the
reasonably to be expected use. Reasonable anticipated use includes more than the intended
use of the product. This implies that manufacturers should take into account that some users
will not always use ADAS with the necessary care. For instance in Germany the benchmark
is the behaviour of “the least informed and most endangered user”. Careless behaviour is not
a reason to exclude the producer automatically from liability, in particular when such
behaviour is to a certain degree foreseeable. An example is the use of Automated Cruise
Control with low speed. In legal literature it is assumed that manufacturers therefore have a
duty to investigate the safety that can be expected from users. Testing ADAS cannot be
limited to technical safety alone, but should include human factors as well. This might imply
for instance investigating driving behaviour of different driver categories in experimental
situations.
The third circumstance mentioned deals with the time when the product was put to market.
This aspect in particular deals with the question whether a product could be considered
defective given that alternative designs were available at the time of marketing and therefore
should have been adapted to the state-of-the-art. If that is the case, perhaps the system should
have not been brought on the market at all, or should have been redesigned with safer
functional characteristics. The risks of a particular design must be balanced against the
benefits of an alternative design. Clearly, the price of the product is an important issue here.
An upper class Mercedes will have a higher level of crash worthiness than the lowest priced
car on the market. But this does not imply that the last one is defective. It will be a balancing
of costs and the seriousness of the risks, between the advantages and disadvantages of an
alternative design for the product and the user. However, as ADAS becomes more advanced
in terms of the degree of automation and therefore proper functions will be more safety critic,
less concessions can be made towards other design criteria such as costs and driver comfort.
On the other hand, values as freedom of consumer choice and vehicles being available at
reasonable costs will not easily lead to the conclusion that a car will be defective because it is
not equipped with ADAS.
The time of putting the product into circulation also plays a key role in the so-called
‘development risk defence’. According to the Directive, the producer shall not be liable if he
proves “that the state of scientific and technical knowledge at the time when he put the
product into circulation was not such as to enable the existence of the defect to be
discovered”. Although this defence in national law was not compulsory, most EU member
states have adopted it in their implementation of the Directive. This statement on the
scientific and technical state-of-the-art opens important avenues for the manufacturer to
defend for product liability, and is therefore highly debated. What efforts may be expected
from the product developer to foresee and minimise product risks? How can one objectively
specify the scientific state-of-the-art in the field of ADAS development in one moment of
time, i.e. the time of introduction? A means for manufacturers to cope with this uncertainty is
again to put high requirements to the testing of the system under various circumstances (and
the registration of these tests).
This brings us to the important question how the judge will (and should) handle the burden
of proof. In product liability cases the burden of proof may often be even more important
than the interpretation of the legal concept of a defective product (Stolker & Levine, 1997).

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The European Directive on product liability basically puts a claim on the injured party to
prove the damage, the defect and their causal link. However, other legal principles allow for
a shift of the burden of proof to the other party when the court considers such as reasonable
and appropriate in light of the circumstances of the case. Evidently, for a driver it will be
extremely difficult to prove that the applied ADAS has caused the accident. The
technological complexity of ADAS might be too large. The driver then will have great
problems with proving that the product was defective and/or with proving the causal link. In
such cases courts could enlighten the injured party’s burden of proof by assuming a defect on
the basis of the circumstances of the case, when it is clear that the driver used the system in
the intended way. Courts in several European countries are willing to facilitate the burden of
proof regarding defectiveness by referring to the ‘typical course of events’ (res ipsa loquitur:
the case speaks for itself). It means that the proof is based on plausibility. With regard to
ADAS this may be complicated, since both system malfunctioning and human errors
(including not rightly responding to the malfunctioning) are generally involved. Moreover, it
may be difficult to identify the source of the malfunctioning. To facilitate reconstruction after
the accident, a data recorder therefore might be a prerequisite. Perhaps the increased use of
ADAS should induce an obligation for inclusion of such recorders in motorised vehicles and
the regular maintenance of them. However, it should be noticed that the availability of stored
data on system performance and driving behaviour raises additional legal issues such as the
question whether these data can be used for other purposes such as criminal charges against
the driver.
The clue from these circumstances is that in certain ADAS-induced traffic accidents, the
parties involved (including insurance companies) might try to shift liability for traffic
accidents towards ADAS manufacturers. This liability threat might hamper the development
and marketing of ADAS. Systems developers and car manufacturers may be discouraged if
potential liability for ADAS-related-accidents is sufficiently high. An important observation
in this respect is however, that although product liability is getting a lot of attention in legal
literature, case law on the subject in Europe is rather scarce (Commission of the European
Communities, 2001). At this point there is a striking difference with the United States. For
instance, where in 1992 Ford faced more than 1000 product liability suits in the US, Ford
Europe had just 1 product liability suit in that year (Castaing, 1994). The question is to which
factors this can be attributed and what the relevance of these factors is for product liability
for ADAS in Europe. Surprisingly, there are no substantial differences in liability conditions
and it could even be argued that American product liability law is becoming less consumer
protective than the European Directive (van Wees, 2000; Howells, & Mildred, 1998).
The striking differences in number of court cases therefore can not be explained from the
differences in product liability regimes, but stems from the significant differences in the way
these regimes are implemented in their broader legal systems. Some major differences are:
 First, damage awards as compensation for pain and suffering are generally much higher in

the USA than in Europe. Moreover, typical in the USA plaintiffs may be awarded
substantial amounts in addition to the compensation for damage to punish the defending
manufacturer (so-called ‘punitive damages’). These high damage awards for suffering and
punishment are a strong incentive to initiate litigation against product manufacturers.
 Secondly, in a product lawsuit in the USA each party hires his own technical and
scientific experts. This easily leads to misleading, biased, one-sided or incomplete

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information influencing the process (Bergkamp & Hunter 1996). In particular in
combination with the jury trial system, this is considered to be a potential threat to
scientific and legally sound decisions in court. In Europe party experts are much less
frequently used; the focus is on the use of neutral and independent experts appointed by
the court.
 Thirdly, in contrast with Europe were product liability is handled fully by professional
judges, in the USA juries are involved. It is believed that these juries are more open for
selective information presented by the party experts and are less inclined to fully and
emotionless investigate the requirements for a defective product (Howells, & Mildred,
1998).
Due to these differences is the legal situation in the field of product liability law in Europe
and the USA, although in terms of the underlying principle the same, in practice not
comparable. This does not mean that US law is not relevant. It is possible that in future, US
law will increasingly influence product liability claim culture in Europe since European
lawyers seem to become increasingly inspired by US law.

5. Tensions regarding ADAS development and deployment
In the previous sections, we briefly explored some regulatory regimes relevant for the
implementation of advanced electronic driver support systems. In that context we focused on
the quality of the product and its intended use: How are safety requirements established and
what are the liability positions of users and manufacturers of these systems? Are current legal
frameworks able to accommodate a smooth development and market implementation of
ADAS? An important conclusion is that the judicial frameworks in both fields of vehicle
safety standards and liability provide for (some) flexibility towards technical developments
such as the introduction of ADAS in the sense that these frameworks contain not many ‘hard
rules’ obstructing the introduction of ADAS. For instance, although safety standards may
contain barriers for certain technical concepts such as ‘steer by wire’, the legal framework
also provides for the possibility (when certain conditions are met) to approve new
technologies that due to their innovative nature can not obviously apply to the existing
standards. Furthermore, with regard to ADAS current standards often leave room for
interpretation whether these standards are met. Product liability is characterised by open
formulated standards. Central criterion for liability is the lack of safety a person is entitled to
expect. This creates flexibility towards technological developments, but also generates
uncertainty for manufacturers. It is basically a valuable principle that judges take into
account all the specific circumstances of an accident. As argued various types of
considerations regarding circumstances can play a role in the case evaluation by the judge.
We have described some of the possible considerations and uncertainties in that context.
They in particularly point at responsibilities at the side of manufacturing industries: careful
design, extensive testing of new systems, optimal communication to users, update of basic
knowledge, and so on. As such, product liability may serve as an additional, generally
formulated safety standard.
Although, from the point of view of unobstructed innovations product liability may be
preferred over pre-market safety standards, manufacturers may be more pleased by setting at

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least some standards to guide them and to serve as a defence strategy in product liability
cases. More important, governments (will) feel the responsibility to guarantee some
minimum safety level of ADAS. With regard to ADAS safety regulation, development and
marketing, the above-described situation generates various tensions. We will discuss a few of
them in this section.
A first and central tension is that between innovation and safety. As argued before,
manufacturers have the desire to innovate the products they offer to the market: innovation
as a selling point. That is a crucial element in their marketing strategy in a very competitive
market. Innovation in the automotive market among others implies implementing advanced
electronics, including ADAS. Cars including such systems are assumed to be more attractive
and might even become a benchmark for followers. To become the market leader based on
innovation is the ideal of many manufacturers. For public authorities and users of the
product, however, safety is a basic requirement. Safety should not be a negotiable issue.
Setting non-negotiable standards implies however knowing ‘what’ and ‘how’. And that’s the
problem: we do not precisely know yet what ADAS safety is. Consequently, although formal
regulation might lead to more protection, it inevitably will take a lot of time and due to that
this legislation might not keep up with the speed of technological developments. Moreover,
one could argue that intervention through product specifications leads to a reduction of
consumer freedom of choice.
The tension between innovation and safety also generates the question about the balance
between national and international legislation. As argued, the specification of vehicle safety
standards is heavily dominated by the work of international regulatory bodies. Harmonisation
of vehicle safety standards on an international level does have important advantages in terms
of increased competition that (to an important extent) also drives the development of ADAS.
Furthermore, as the automobile industry is becoming more and more global, legislative
influence is best exercised through trading blocks rather than by individual states. On the
other hand, consensus between countries with major differences in culture and economic
interest is difficult to reach. Harmonisation should not lead to important delays in standard
setting and to lowering standards to an unacceptable common denominator. In the field of
traffic safety, this danger seems real since traffic cultures between European states differ
significantly. This is illustrated by the fact that today’s fatality rates in traffic strongly differ
between different states.
The fact that formal legislation may hamper innovation also touches upon the tension
concerning the imbalance in research means and expertise between manufacturers and
public authorities. For instance, the fact that public authorities do not take part in the
development process can easily lead to an imbalance in expertise between these parties. The
automotive industry is powerful in terms of new product development and the building of a
public knowledge infrastructure on technology development, systems design and impacts is
dominated by automotive industry efforts. Consequently, automotive industries play a
significant influential role in decision-making procedures. However, competition in product
development and marketing causes crucial information not to become publicly available or
with significant time lags. Even scientific research at universities might suffer from this
problem. Furthermore, with regard to certain aspects of ADAS such as the use of software, it
may be difficult or even impossible to define objective product safety specification. This can
only partly be compensated by shifting the focus to development process quality criteria. The

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inability to objectively assess the safety of ADAS in a pre-market phase should be
compensated by stronger public post market controls (warnings, recalls, etc.).
In the slipstream of this knowledge dissemination and pre-market safety assessment issue, a
point of concern is that international harmonisation of vehicle standards and mutual
recognition agreements may lead to forum shopping. Manufacturers and traders may seek out
those national conformity assessors who are willing to interpret existing standards in a way
that is most favourable in terms of the unobstructed introduction of ADAS. This danger is
especially latent within the European framework of whole vehicle type approval for
passenger cars in combination with the lack of specific rules for ADAS. This problem may
(partly) be solved by strengthening the co-operation between type approval authorities and by
providing the national states with more possibilities to take action when traffic safety may be
threatened (including post-market control measures).
The tension between innovation and safety finally generates the question to which degree
intervention in ADAS development and deployment should be based on public or private
intervention. In legal terms this immediately refers to the weight that is put on respectively
public law regimes versus private law regimes. Given circumstances as the pace of
technological developments, the research and financial efforts involved in the formulation of
safety standards and test procedures, more responsibility may be given to manufacturers to
mutually agree on process quality criteria based on state-of-the-art scientific and technical
insights. This could lead to more flexibility and acceptance within the industry than can be
reached in case of formal regulation with regard to these issues. The use of self-regulatory
standards should take place within some regulatory framework, for instance in line with the
so-called new approach, to insure that at least some mandatory safety requirement will be
met.

6. Final remarks
Advanced driver assistance systems are increasingly introduced in road traffic. Various
innovative opportunities have been described in literature on this subject. Their
implementation is coloured by several serious uncertainties. The most basic uncertainty is
related to the fact that important pieces of knowledge about the performance and
applicability of ADAS still lack. In the slipstream of this uncertainty, another source of
uncertainty concerns doubts on whether legal regimes are adequate to cope with ADAS or
that they might create problems with regard to their development and implementation.
One of the main conclusion from this article is that the present judicial frameworks in both
the fields of vehicle safety standards and liability provide for (some) flexibility towards
technical developments regarding ADAS in the sense that these frameworks do not contain
many ‘hard rules’ prohibiting the introduction of these systems. This, of course, does not
imply that there is no apparent need for ADAS safety standards, especially from a product
safety policy perspective. It was argued, however, that concerning the safety regulation of
ADAS the speed of technological developments as well as the innovative and specific nature
of ADAS technology generate various tensions. These tensions may (need to) have
consequences for the weight that is put on public and private intervention mechanisms and
the relation between preventive safety standards and more reactive regimes such as product
liability and post-market controls.

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These (potential) shifts should, however, not result in a ‘sit and wait’ attitude of public
authorities. In particular it is important to invest more in building a shared and public
knowledge base regarding ADAS. European research programs are important in that context,
but not sufficient. More investments in public knowledge development at member state level
is not a luxury given the possible significant impacts of ADAS on national traffic policy. The
challenges we face in this context are of great importance for each of us. Consequently, a
careful public evaluation of developments and decision making on policy measures in this
field is highly important. We will therefore follow these developments with great interest.

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</reference>

<statements>
1. The UK’s Automated and Electric Vehicles Act already makes insurers liable for harm caused by automated vehicles when driving themselves while preserving recourse against manufacturers.
2. Insurers would have incentives to collect detailed data, identify patterns of defects or misuse, and press manufacturers for safer designs.
</statements>

Begin the assessment now. Output only the JSON list, without any conversational text or explanations.