Malaysia's Journey Towards Legalizing Autonomous Vehicles and Addressing Accidents

The advent of autonomous vehicles has been heralded as a new era in transportation technology. Autonomous vehicles are designed to eliminate human error and reduce the number of accidents on our roads. However, as with any new technology, there are risks and legal issues that need to be considered. In this article, we explore the legal issues surrounding accident liability in the use of autonomous vehicles from the viewpoint of Malaysia drawing on lessons from around the globe.

Where is Malaysia on the journey to implementing autonomous vehicles?

Malaysia is making strides towards implementing autonomous vehicles, with the development of the first autonomous vehicle testbed, MyAV, in Cyberjaya, Selangor in 2020. This testbed has been established through a collaboration between the Ministry of Transport Malaysia and Futurise, under the National Regulatory Sandbox. In the same year, the first version of guidelines for the testbed was introduced. To further support the innovation of autonomous vehicle technology, the Ministry of Transport Malaysia and Futurise are expanding MyAV to other locations with different types of testing applications, including people mover and transportation as a service.

The National Automotive Policy (NAP) 2020, formulated by the Malaysia Automotive, Robotics and IoT Institute (MARii) under the Ministry of International Trade and Industry (MITI), outlines a vision-driven policy aimed at enabling the development of autonomous vehicles and overall mobility ecosystem in the country. The policy aims to promote ecosystem development towards Connected Mobility, covering technology and expertise development, standards and regulation, legislative, new business opportunities, intellectual property, and others.

“The policy aims to promote ecosystem development towards Connected Mobility, covering technology and expertise development, standards and regulation, legislative, new business opportunities, intellectual property, and others.”

With these initiatives, Malaysia is making significant progress towards implementing autonomous vehicles, bringing the country closer to the future of transportation.

However, alongside the technological development questions of policy and regulation surrounding liability are still in a state of flux. While recognising a need for a review of the relevant laws, there is no clear direction on an appropriate approach as yet.

Liability in cases of accidents

One of the primary legal issues that arise in the case of autonomous vehicles is determining liability in cases of accidents. In traditional accidents, liability is typically determined by assessing the actions of the drivers involved. However, in the case of autonomous vehicles, liability is more complex as it is not always clear who is responsible for the accident.

Liability issues are further complicated by the fact that autonomous vehicles can operate in a variety of different modes. For example, some autonomous vehicles are designed to operate in fully autonomous mode, while others require a driver to be present and ready to take over control of the vehicle if necessary. In addition, some autonomous vehicles are designed to operate in a shared or collaborative environment, where multiple vehicles are communicating with each other and with a central system.

The following classification is helpful in understanding this distinction:

Level 0 - No Automation

The human manually controls the vehicle.

Level 1- Driver Assistance

The lowest level of automation where advanced driver systems such as adaptive cruise control and speed setting are introduced; the driver remains to monitor other aspects of driving such as steering and braking.

Level 2 - Partial Automation

Partial driving automation, where the vehicle can assist the driver with more complex tasks such as lane centering and adaptive cruise control simultaneously; the driver remains in charge.

Level 3 - Conditional Automation

Conditional driving automation, where the car can accelerate, brake, and steer itself under limited circumstances. When the situation no longer meets the specific requirements, control falls back to the driver.

Level 4 - High Automation

High driving automation that allows the vehicle to drive itself under specific circumstances. In-vehicle users may be alerted at times when their assistance is required.

Level 5 - Full Automation

Full driving automation that allows the vehicle to drive itself everywhere, under all conditions, without the need for a driver behind the wheel.

Determining liability in accidents involving autonomous vehicles requires careful consideration of the technology involved, as well as the actions of the various parties involved. For example, liability may be attributed to the manufacturer of the autonomous vehicle if there was a defect in the vehicle's software or hardware that led to the accident. Alternatively, liability may be attributed to the owner of the vehicle if they failed to properly maintain the vehicle or if they were operating the vehicle in a manner that was inconsistent with the vehicle's capabilities.

In typical negligence-based laws, establishing a duty of care, a breach of that duty, and recoverable damage are required elements. While establishing the duty of care may not be difficult, determining whether and how that duty has been breached becomes more complex in the context of self-driving cars, given the intricate and multifaceted technology involved. Identifying the source and nature of a hardware malfunction may not be significantly different from non-autonomous vehicle accidents, but failures of software pose greater challenges and complicate the question of breach. Accessing and interpreting relevant software code, as well as accounting for variances in software operation based on data and training, are complex issues that become more pronounced as automation levels increase.

As a potential alternative, a no-fault liability regime could be considered where fault does not need to be proven. Instead, if harm is suffered due to an accident, compensation for the victim follows automatically. The simplicity of a no-fault liability regime may initially seem attractive in addressing the challenges of self-driving cars. However, abandoning the current legal and evidential requirements raises questions about who should contribute to a compensation fund and how it would be administered without disincentivizing manufacturers from entering the market or maintaining high safety standards. Additionally, transitioning to such a system would involve significant costs, even if these issues are resolved satisfactorily, similar to the challenges associated with strict liability.

“Overall, finding a liability regime that effectively addresses the unique challenges posed by self-driving cars requires careful consideration of legal, evidential, and practical implications. As technology continues to evolve, the legal framework may need to adapt to effectively address liability concerns in the context of autonomous vehicles.”

High profile accidents

As the use of autonomous vehicles becomes more widespread, there have been a number of reported legal cases involving accidents involving these vehicles. One of the most high-profile cases occurred in 2018, when an Uber self-driving car struck and killed a pedestrian in Arizona. The incident raised questions about the safety of autonomous vehicles, as well as the liability issues associated with these vehicles.

In the aftermath of the Uber accident, it was determined that the vehicle's sensors had detected the pedestrian, but that the car's software had failed to properly identify her as a pedestrian. As a result, the vehicle did not slow down or take any evasive action, ultimately resulting in the fatal accident.

The Uber accident led to a number of legal and regulatory changes. Uber temporarily suspended its self-driving car testing program, and the National Transportation Safety Board launched an investigation into the incident. In addition, Arizona revoked Uber's permit to test autonomous vehicles in the state.

Another notable case involving autonomous vehicle accidents occurred in 2016, when a Tesla Model S collided with a truck while in autopilot mode. The driver of the Tesla was killed in the accident, and the incident raised questions about the limitations of Tesla's autopilot technology.

In the aftermath of the Tesla accident, it was determined that the vehicle's sensors had failed to detect the truck, which was crossing the road in front of the Tesla. It was also determined that the driver had not been paying attention to the road and had failed to take control of the vehicle when necessary.

The Tesla accident led to a number of changes in Tesla's autopilot technology, including the addition of new sensors and improved software. It also raised questions about the responsibilities of drivers when using autonomous vehicles, and the need for better education and training programs for autonomous vehicle operators.

Different jurisdictional approaches

The legal considerations surrounding accidents involving autonomous vehicles vary depending on the jurisdiction in which the accident occurs. In some jurisdictions, liability is automatically attributed to the owner of the vehicle, regardless of whether they were operating the vehicle at the time of the accident. In other jurisdictions, liability is attributed to the manufacturer of the autonomous vehicle, particularly if there was a defect in the vehicle's software or hardware.

Malaysia does not have any autonomous vehicle specific laws however there may be a need to address this lacuna sooner rather than later as Malaysia’s land boarders, both north and south, are heavily used. In March 2022 a couple from Singapore recorded their entire road trip from Singapore all the way to Penang, with their Tesla on autopilot. The couple came under investigation by the police as quoted by Bukit Aman Chief Assistant Director of Traffic Investigations and Enforcement (JSPT) Superintendent Dr. Bakri Zainal Abidin according to Guang Ming Daily. Statements by the police referenced existing laws where drivers are allegedly required to be of sound mind, while having their hands on the steering wheel for the whole journey.

In the United States, liability issues are typically addressed on a state-by-state basis. Some states, such as California and Nevada, have enacted legislation that specifically addresses the liability issues associated with autonomous vehicles. These laws typically require manufacturers to obtain a special permit before they can test or operate autonomous vehicles on public roads. They also require manufacturers to maintain a certain level of insurance coverage in the event of an accident. As of early 2020, twenty-nine American states had enacted legislation concerning autonomous vehicles, and eleven state governors have issued autonomous vehicle-related executive orders.

In Europe, while addressing autonomous vehicles and safety at the EU level with the EU developing a framework for the testing and deployment of autonomous vehicles, which includes provisions for liability and insurance, the issue of liability is not addressed. Under this framework, manufacturers are required to maintain insurance coverage for their vehicles, and liability is typically attributed to the manufacturer in the event of an accident. However, individual member states are addressing liability through their own laws causing divergent approaches. This will be an interesting point of reference for land connected countries that intend to harmonise such issues to promote economic trade.

In Asia, there is a wide range of approaches to addressing the legal and ethical issues surrounding autonomous vehicle accidents.

In China, the Draft for Comments of the Regulations of Shenzhen Special Economic Zone on the Administration of Intelligent and Connected Vehicles by the Standing Committee of the Shenzhen Municipal People's Congress (“Shenzhen Draft”) in March 2021 allowed for road testing of Level 3 autonomous vehicles in Shenzhen, China, indicating a progressive approach towards the testing and development of autonomous vehicles in that jurisdiction. This came at the same time as the issuance of the Draft Proposed Amendments of the Road Traffic Safety Law by the Ministry of Public Security of China (“MPS Draft”). The Shenzhen Draft has taken effect as a regulation since August 2022.

Liability remains a crucial legal concern in the development of autonomous vehicles. Currently, there are significant variations globally in how liability is assigned in relation to autonomous vehicles. The MPS Draft, which provides high-level regulations on the principles of liability for conditionally autonomous cars, leave room for addressing liability issues for fully autonomous cars at a later stage by the relevant department of the State Council. However, the provisions of the MPS Draft lacks clarity on how liability in relation to highly automated cars will be addressed. It is anticipated that legislation in this regard will evolve as autonomous technology progresses.

Specifically, the MPS Draft attributes liability to either the driver or the automated driving system developer for vehicles that are equipped with automated driving functions but still retain manual operation modes. However, there may be controversy over the precise meaning of "automated driving system developer." as the term may suggest that car manufacturers that have not developed their own automated driving systems may assign liability to third party developers.

In Japan, the government has had a concerted and fairly systematic approach to legislative reform on all aspects of autonomous vehicles. This includes setting conditions of use i.e. general road, motorway, specialized road for only autonomous driving vehicles, road with or without lanes, etc., geographic conditions (urban areas, mountainous areas, other types of landscapes, what kind of region the road is in, etc.), natural environment conditions (differences between night and daytime, ability to maintain safe driving in different weather changes, etc.), and other conditions (speeds at which safe autonomous driving can be maintained, ability to secure safety through harmony with infrastructure such as roads and traffic signals, whether safety personnel need to be riding in the car during autonomous driving, etc.). The regulation go further to address issues of disassembly, maintenance, modification and requirements for specialised technicians.

The most recent amendments to Japan’s laws on this area address Level 4 autonomy requiring operators of unmanned vehicles with Level 4 autonomy to obtain a license. This license system is expected to be used for residents in depopulated areas. Operators of unmanned vehicles will also be obligated to prepare a system to send staff to the site of any accidents.

Conclusion

The legal and ethical issues surrounding accidents involving autonomous vehicles are complex and multifaceted. Determining liability in these cases requires a careful consideration of the technology involved, as well as the actions of the various parties involved. Insurance issues must also be addressed to ensure that victims of accidents involving autonomous vehicles are properly compensated.

Jurisdictional variations in liability and insurance laws add another layer of complexity to these issues and reported legal cases involving autonomous vehicle accidents have highlighted the need for continued regulatory oversight and development of the technology.

As autonomous vehicle technology continues to advance, it is likely that legal and ethical issues surrounding accidents involving these vehicles will continue to evolve. It will be important for policymakers, manufacturers, and other stakeholders to work together to ensure that the benefits of autonomous vehicles are maximized, while minimizing the risks to public safety.

References and Further Reading

“MPS Proposed Amendments: A step toward regulations for autonomous vehicles in China," DLA Piper, October 2017, https://www.chinalawinsight.com/2021/04/articles/corporate-ma/chinas-legislation-on-autonomous-cars-rolls-out/

“Who’s to Blame When Autonomous Cars Crash?” Wired, 2018, https://www.wired.com/story/whos-to-blame-when-autonomous-cars-crash/.

“Uber Self-Driving Car Accident Highlights Liability and Technology Challenges.” Legaltech News, 2018, https://www.law.com/legaltechnews/2018/03/21/uber-self-driving-car-accident-highlights-liability-and-technology-challenges/?slreturn=20230304035812.

“The Legal and Ethical Implications of Self-Driving Cars.” Forbes, 2018, https://www.forbes.com/sites/cognitiveworld/2018/08/27/the-legal-and-ethical-implications-of-self-driving-cars/?sh=551b620f46de.

“Automated Driving: Legislative and Regulatory Action.” European Commission, 2019, https://ec.europa.eu/transport/sites/default/files/legislation/automated_driving/2019_02_13_automated_driving_legislative_and_regulatory_action_en.pdf.

“Autonomous Vehicle Implementation Predictions: Implications for Transport Planning.” Victoria Transport Policy Institute, 2019, https://www.vtpi.org/avip.pdf.

Takeyoshi Imai, “Legal regulation of autonomous driving technology: Current conditions and issues in Japan”, IATSS Research, Volume 43, Issue 4, 2019, https://www.sciencedirect.com/science/article/pii/S0386111219301591

Report on the Attribution of Civil Liability for Accidents Involving Autonomous Cars (September 2020) Singapore Academy of Law, Law Reform Committee https://www.sal.org.sg/sites/default/files/SAL-LawReform-Pdf/2020-09/2020_Report%20on%20the%20Attribution%20of%20Civil%20Liability%20for%20Accidents%20Involving%20Autonomous%20Cars.pdf

“Autonomous Vehicles and Their Impact on Liability.” American Bar Association, 2020, https://www.americanbar.org/groups/tort_trial_insurance_practice/publications/the_tort_trial_and_insurance_practice_law_journal/50-1/av-liability/.

“The Legal Liability for Autonomous Vehicle Crashes.” Lawfare, 2020, https://www.lawfareblog.com/legal-liability-autonomous-vehicle-crashes.

“Autonomous Vehicles: Liability and Insurance.” National Conference of State Legislatures, 2020, https://www.ncsl.org/research/transportation/autonomous-vehicles-liability-and-insurance.aspx.

Đorđe Petrović, Radomir Mijailović, Dalibor Pešić, “Traffic Accidents with Autonomous Vehicles: Type of Collisions, Manoeuvres and Errors of Conventional Vehicles’ Drivers,” Transportation Research Procedia, Volume 45, 2020, Pages 161-168, - https://www.sciencedirect.com/science/article/pii/S2352146520301654

“Self-Driving Cars and Insurance: Everything You Need to Know.” The Zebra, 2021, https://www.thezebra.com/auto-insurance/self-driving-cars-insurance/.

"Draft for Comments of the Regulations of Shenzhen Special Economic Zone on the Administration of Intelligent and Connected Vehicles," Standing Committee of the Shenzhen Municipal People's Congress, March 2021) http://www.szrd.gov.cn/rdlv/chwgg/content/post_826149.html

“The Ethics of Autonomous Vehicles.” Stanford Encyclopedia of Philosophy, 2021, https://plato.stanford.edu/entries/ethics-ai-autonomous-cars/.

Guideline For Public Road Trials Of Autonomous Vehicles (Version 4 - 23.2.2022) -  https://www.mot.gov.my/my/Announcement/GUIDELINE%20FOR%20PUBLIC%20ROAD%20TRIALS%20OF%20AUTONOMOUS%20VEHICLES.pdf

“The Road to Autonomous Vehicles in Asia Pacific” (2022) https://techwireasia.com/2022/03/autonomous-vehicles-asia-pacific/

Police bans hands-free driving in Malaysia after S’porean drives Tesla Model 3 to Penang on Autopilot - https://paultan.org/2022/04/06/police-ban-hands-free-driving-singaporean-tesla-model-3-penang-autopilot/

“Real driverless cars are now legal in Shenzhen, China’s tech hub” 2022 https://techcrunch.com/2022/07/25/real-driverless-cars-legal-in-chinas-shenzhen/

Japan revises road traffic law, allowing Level IV autonomous driving (2023) https://english.news.cn/20230401/9f01d344f8ff4c9f9137a1cf7f99b220/c.html#:~:text=Japan%20revises%20road%20traffic%20law%2C%20allowing%20Level%20IV%20autonomous%20driving,-Source%3A%20Xinhua&text=TOKYO%2C%20April%201%20(Xinhua),autonomous%20driving%20on%20public%20roads.

“Self-Driving Car Accident Reports.” National Highway Traffic Safety Administration, https://www.nhtsa.gov/technology-innovation/automated-vehicles-safety/self-driving-car-testing-incident-summaries.