eSafety Compendium

Overridable intervention systemsThe potential liability of the driver in negligence where the system is overridable will verymuch depend on the facts of each case. Important factors will include whether or not thesystem has inherent limitations, whether the driver takes note of and acts appropriately inrelation to any warnings about the consequences of such limitations, and whether in thecircumstances a reasonable person in the same situation could have overridden thesystem to avoid a collision. If a driver chooses to buy a vehicle with overridablefunctions, he may be exposing himself to a new degree of risk. By buying such anadvanced feature, the driver takes on the responsibility of using the function in theappropriate manner.Certain factors need to be considered such as the correct level of information andwarnings released by the manufacturer about the functioning of the system.Indeed, the care of the driver in his driving behaviour may be classified on the basis ofhis capability to correctly utilise the system, taking into account the information andinstructions made available to him.Also, malfunctioning of the system may imply a manufacturer’s liability, the possibilitydepending on whether it is possible to determine that the malfunctioning of the systemcaused the damaging event.Non-overridable intervention systemsIf the driver is not able to override the system, no liability for a breach of rules onbehaviour in road traffic caused by the system arises, because such liability, as a precondition,requires that the driver is able to influence his driving. If there is no alternativeconduct available to a driver, there is no fault-based liability.If the driving support system is not overridable by the driver, the area of themanufacturer’s liability in case of accident in traffic situations is likely to be broadened.Given the importance of a driver being able to avoid accidents to the general safety ofthe public, a system which renders the driver powerless in certain foreseeable and likelysituations should be considered as a defective and unsafe design.Therefore, where damage ensues as a result of the intervention of a system which cannotbe overridden by the driver, the manufacturer will be considered liable.Such liability may fall under the general rules of tort law (general liability) orDefective Product Law (strict liability, which in EU countries is generally governed bythe EU Directive 85/374).However, notwithstanding that the likelihood of liability being imposed on the driver isstrongly reduced in cases where damage is caused by the malfunctioning of vehiclesequipped with non-overridable systems, it cannot be totally excluded.There will always be other issues to consider, such as whether or not the driver ofanother vehicle has been negligent. Also, if a collision occurs where the functioning ofthe non-overridable system has no bearing (for example, it occurs as a result of thedriver's failure to slow down, yet the system permits him to slow down), the driver of thevehicle may be liable in negligence.Page 43 of 490