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SECTION VI
Łukasz Żelechowski∗
Dr hab., Assistant Professor, University of Warsaw
ORCID: 0000-0002-3820-6683
CIVIL LIABILITY FOR DAMAGES CAUSED
BY AUTONOMOUS CAR VEHICLES:
THE POLISH PERSPECTIVE
1. Introduction
The development of autonomous cars and the real prospect of their participation
in road trac in the future are factors making the issue of civil liability for
damages caused by the motion of such vehicles highly relevant. Road accidents
involving autonomous cars are becoming a reality: the rst fatal pedestrian
accident involving a self-driving car occurred in Arizona on 18 March 2018.1
These developments raise the fundamental question of whether the existing legal
framework relating to liability for damage caused by the motion of conventional
vehicles driven by humans can properly full its function and purpose also
concerning the redress for damage caused by the motion of autonomous cars. The
doubts expressed in this regard in Polish and foreign legal literature justify taking
under scrutiny possible ways of ensuring the appropriate adjustment of the legal
framework, either through the interpretation of the existing applicable provisions
by courts or through legislative changes.
In the scholarly debate, various bases for liability are examined with the view to
verifying their suitability for claiming compensation for damage caused by the use of
autonomous vehicles. Among the liability regimes known to the Polish Civil Code2
(hereinafter: Civ.C.), attention is given rst and foremost to the tort liability of car
∗ Department of Intellectual Property Law, Faculty of Law and Administration, University of
Warsaw.
1 Cf. T. Griggs, D. Wakabayashi, “How a Self-Driving Uber Killed a Pedestrian in Arizona”,
The New York Times, March 21, 2018, https://www.nytimes.com/interactive/2018/03/20/us/self-
driving-uber-pedestrian-killed.html (accessed 20.06.2022).
2 Ustawa – Kodeks cywilny z dnia 23 czerwca 1964 r. [The Civil Code of 23 June 1964],
consolidated text, Journal of Law [J. of L.] 2020, item 1740, with subsequent amendments.
58 Łukasz Żelechowski
possessors for damages caused by the motion of mechanical vehicles (cf. section 4
of this chapter) and the regime of liability for defective products (cf. section 5).3
Within the sphere of contractual liability, attention is paid to the issue of liability
under the regime of warranty for physical defects of an autonomous vehicle as an
object of a sales agreement (cf. section 9); the warranty regime grants the buyer more
rights than just compensation for damages. All of the above-mentioned regimes
of liability focus either on the motion of the vehicle itself or on a defect of the
vehicle causing the damage. There is, however, a wider variety of possible causes
of damage resulting from the trac of autonomous vehicles, and they also require
consideration.4 For instance, the issue of liability of entities conducting research
works concerning the motion of autonomous vehicles may be worth considering
(cf. section 6). Prospectively, the issue of liability of entities operating centralized
IT systems that manage the trac of highly advanced autonomous vehicles may
gain in importance in connection with possible failures of such systems leading
to road accidents (cf. section 7). Additionally, there are questions related to the
currently widely debated issues of introducing special regulations on civil liability
for damages caused by articial intelligence (AI); these issues also have signicance
in the context of autonomous cars, as they operate with the assistance of AI systems
(cf. section 8). Finally, since in practice the rst point of a claim for compensation
for damages sustained as a result of a trac accident are insurance companies or the
Insurance Guaranty Fund, the issue of the compulsory third party liability insurance
of motor vehicle possessors, with emphasis on specic aspects connected with
autonomous cars, cannot be left out (cf. section 10). The views expressed in legal
literature, mostly Polish literature, serve as the point of reference in this chapter,
while the development of Polish case law concerning the topic of this chapter
remains a matter of the future for the time being.
It is hard to overlook the international dimension of the topic at hand. One
should mention in that regard the changes introduced to the Vienna Convention on
Road Trac of 8 November 19685 which entered into force on 23 March 2016.6
The added Art. 8 section 5bis in ne of the Convention permits the use of vehicle
systems that inuence the way vehicles are driven, provided that such systems
3 M. Matusiak-Frącczak, Ł. Frącczak, „Odpowiedzialność cywilna za wypadki komunikacyjne
z udziałem pojazdów autonomicznych” [Legal aspects of the admission of autonomous cars to trac.
A task for the Polish legislator. Outline of the problem], Państwo i Prawo 2019, No. 11, p. 115.
4 As rightly observed by G. Urbanik, „Odpowiedzialność za szkody wyrządzone przez pojazd
autonomiczny w kontekście art. 446 k.c.” [Liability for damages caused by an autonomous vehicle
in the context of Art. 446 of the Civil Code], Studia Prawnicze. Rozprawy i Materiały 2019, No. 2,
Vol. 25, pp. 83‒84.
5 J. of L., No. 5, item 40.
6 Cf. https://unece.org/leadmin/DAM/trans/doc/2014/wp1/ECE-TRANS-WP1-145e.pdf
‒ the proposed amendments and https://treaties.un.org/doc/Publication/CN/2015/CN.529.2015.
Reissued.06102015-Eng.pdf ‒ the acceptance of amendments (accessed 20.06.2022).
59
Civil Liability for Damages Caused by Autonomous Car Vehicles: the Polish Perspective
can be overridden or switched o by the driver. This marks a departure from the
previous position under the Convention which required the driver to maintain
complete control of the vehicle at all times. In other words, Art. 8 section 5bis of
the Convention can be read as permitting the participation of partly autonomous
vehicles in road trac.7 Furthermore, the universal (cross-border) nature of
the technological development of autonomous cars is a natural stimulus for
comparative analyses of civil liability for damages caused by such vehicles.8 In
addition, from the perspective of Poland as a member of the European Union,
the EU dimension of the issue is, of course, also important, because at least some
liability regimes relevant in the context of the topic of this chapter are harmonized
at the EU level. This applies in particular to the Defective Product Liability
Directive 85/374/EEC (hereinafter: Dir. 85/374)9 and Directive 2009/103 relating
to insurance against civil liability in respect of the use of motor vehicles, and the
enforcement of the obligation to insure against such liability (hereinafter: Dir.
2009/103),10 as well as proposed legislation relating to the issue of civil liability
for damages caused by AI (cf. section 8).
2. Provisions of Polish law relating directly to autonomous cars
The only existing regulation in Polish law relating directly to autonomous
vehicles is contained in the Road Trac Law of 20 June 1997 (hereinafter referred
to as RTL),11 in its Part II, Chapter 5, Section 6, entitled “Use of roads for the
purposes of research works concerning autonomous vehicles” (Arts. 65k–65n
RTL). These provisions were added to the RTL by the Act of 11 January 2018
on Electromobility and Alternative Fuel12 which simultaneously introduced
7 J. Loranc-Borkowska, “Civil Liability for Damage Caused by a Physical Defect of an
Autonomous Car in Polish Law”, Studia Iuridica Lubliniensa 2020, No. 5, Vol. XXIX, p. 169.
8 Cf. e.g. an expert’s report published by the European Commission – E. Karner, B. A. Koch,
[in:] E. Karner, B. A. Koch, M. A. Geistfeld, Comparative Law Study on Civil Liability for Articial
Intelligence, pp. 66‒80 and concerning U.S. law ‒ M. Geistfeld, ibidem, pp. 122‒129.
9 Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations
and administrative provisions of the Member States concerning liability for defective products of
25 July 1985, on the approximation of the laws, regulations and administrative provisions of the
Member States concerning liability for defective products, OJ L210, 7.08.1985, pp. 29–33.
10 Directive 2009/103/EC of the European Parliament and of the Council of 16 September
2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the
enforcement of the obligation to insure against such liability, OJ L263, 7.10.2009, pp. 11–31.
11 Ustawa ‒ Prawo o ruchu drogowym z dnia 20 czerwca 1997 r. [Trac law act of 20 June
1997], consolidated text, J. of L. 2021, item 450, with subsequent amendments.
12 Ustawa o elektromobilności i paliwach alternatywnych z dnia 11 stycznia 2018 r. [Act of
11 January 2018 on electromobility and alternative fuels], cf. Art. 55 of this act in its original version
published in J. of L. 2018, item 317.
60 Łukasz Żelechowski
amendments to the RTL. The regulation in the RTL allows carrying out research
works in road trac on public roads, particularly for the use of autonomous
vehicles in public transportation and other public tasks, provided that the safety
requirements are met and the permission to carry out these works has been
obtained by their organizer (Art. 65l, section 1 RTL). In the light of the above-
mentioned regulation, the Polish lawmaker does not currently permit the normal
use of autonomous vehicles on public roads, but only allows for test drives of such
vehicles.13
3. The concept of an “autonomous car”
An autonomous car is most often dened as a car vehicle that, due to
technology, is capable of moving without human intervention.14 Formulating
a universal doctrinal denition is, however, a dicult task because there are
dierent levels of car automation. This diversity may be reected in the variety of
terms used to describe the category of vehicles at hand, e.g. ‒ autonomous cars,
driverless cars, self-driving cars, robotic cars.15 A dichotomous distinction is also
drawn between semi-autonomous and autonomous vehicles16. The commonly used
classication elaborated by the SAE (Society of Automotive Engineers) is a useful
and acknowledged taxonomy of levels of automation for car vehicles.17 It provides
for the scale of vehicle automation from level 0 to level 5 (level 0 ‒ no automation,
level 1 ‒ driver assistance, level 2 ‒ partial automation, level 3 ‒ conditional driving
automation, level 4 ‒ high driving automation, level 5 ‒ full driving automation).
In the light of this scale, levels 4 and 5 are characterized by a high level of
automation, and cars at these levels of automation can be considered autonomous
13 G. Urbanik, op. cit., p. 88.
14 J. Loranc-Borkowska, op. cit., p. 168; A. Wilk, „Odpowiedzialność za szkody wyrządzone
przez ruch tzw. pojazdów autonomicznych. Czy polskie prawo nadąża za rozwojem techniki?”
[Liability for the damages caused by autonomous vehicles. Does the Polish law keep up with
technological progress?], Edukacja Prawnicza 2019, No. 2, p. 23; M. Czenko, „Odpowiedzialność
za szkodę spowodowaną ruchem pojazdu autonomicznego w systemie amerykańskiego prawa
cywilnego” [Liability for damage caused by autonomous vehicles in the American law], Zeszyt
Studencki Kół Naukowych Wydziału Prawa i Administracji UAM 2017, No. 7, p. 105.
15 M. Czenko, „Odpowiedzialność…”, p. 105, stressing the diversity of English terminology
in that regard.
16 A. Michalak, Odpowiedzialność cywilnoprawna w obrocie oprogramowaniem komputero-
wym w erze sztucznej inteligencji [Civil liability concerning computer software in the era of articial
intelligence], Warszawa 2021, p. 406.
17 SAE International’s standard J3016: Taxonomy and Definitions for Terms Related to
On-Road Motor Vehicle Automated Driving Systems (2014), http://www.sae.org/autodrive,
and for the table with levels https://www.sae.org/binaries/content/assets/cm/content/news/
press-releases/pathway-to-autonomy/automated_driving.pdf (accessed 20.06.2022).
61
Civil Liability for Damages Caused by Autonomous Car Vehicles: the Polish Perspective
cars,18 although a view has also been expressed that the category of autonomous
vehicles begins as early as level 3 of the above-mentioned classication.19
The normative denition of an autonomous car in Polish law is contained in
Art. 65k RTL. The fact that the Polish lawmaker employs the term “autonomous
cars” justies its use also in the title of this chapter, even if various terms are used
in the legal literature to dene vehicles that operate with a reduced or eliminated
role of the driver, as stated above. According to Art. 65k RTL, an autonomous
vehicle is a car equipped with systems that control the motion of this vehicle
and enable this motion without intervention on the part of the driver, who may
take control of the vehicle at any moment. This legal denition has been adopted
as part of the Polish legislation concerning research works relating to such
vehicles (cf. section 2). In the light of this denition, it is unclear to what extent
an autonomous car would be allowed to move without human intervention, and
in particular, whether the requirement that the driver must be capable of taking
control of the car implies that the car must be equipped with a steering system
that includes a steering wheel, gas pedal, and brakes.20 An important supplement
to the above denition is, however, contained in Art. 65n section 1, p. 2 RTL
which states that the organizer of research works is required to ensure that during
the research work there is always a person authorized to drive the autonomous
vehicle who is seated in the seat intended for the driver and who can take control
of the vehicle at any time, particularly in the event of a danger to road safety. In
the light of the above requirement, vehicles operating without the participation of
a driver seated inside the car (or rather an “operator” understood as the “successor
of the driver”21) which are not equipped with a steering system and other elements
serving to take control by a human, cannot be considered admissible on Polish
roads, even if such vehicles were to be used only for testing purposes.22
18 Cf. variety of terms mentioned by K. Ludwichowska-Redo, „Samochody autonomiczne
– wyzwanie dla polskiego prawa cywilnego?” [Autonomous cars – a challenge for Polish private
law?], [in:] Z badań nad prawem prywatnym. Księga pamiątkowa dedykowana Profesorowi
Andrzejowi Kochowi [From research on private law. A jubilee book dedicated to Professor Andrzej
Koch], eds. A. Olejniczak, M. Orlicki, J. Pokrzywniak, Warszawa 2021, p. 203.
19 G. Urbanik, op. cit., p. 87.
20 M. Czenko, O testowaniu samochodów autonomicznych (krytycznych) słów kilka [A few
(critical) comments concerning the testing of autonomus cars], https://www.transport-publiczny.
pl/wiadomosci/o-testowaniu-samochodow-autonomicznych-krytycznych-slow-kilka-57672.html
(accessed 20.06.2022); A. Wilk, op. cit., p. 24.
21 L. Helińska, B. Paczocha, A. Piskorz, „Prawne aspekty ochrony konsumenta oraz
odpowiedzialności za szkody w kontekście samochodów autonomicznych” [Legal aspects of
consumer protection and liability for damages in the context of autonomous cars], Internetowy
Kwartalnik Antymonopolowy i Regulacyjny 2020, No. 7, p. 39.
22 M. Czenko, O testowaniu… (an on-line comment), the author seems to require that these other
elements include the gas and brake pedal; J. Kuźmicka-Sulikowska, „Nowe wyzwania dla odpowie-
dzialności deliktowej przewidzianej w polskim prawie – wybrane uwagi w związku z funkcjonowaniem
62 Łukasz Żelechowski
Against this background, a question may be raised how the national denition
of an autonomous vehicle ts the above-mentioned levels of autonomy according
to the SAE’s taxonomy. The positions on this issue are divergent. According to the
restrictive view, the national denition does not apply to vehicles at levels 4 and 5,
but only to vehicles at levels 2 and 3.23 According to a more liberal approach, only
advanced autonomous vehicles classied at level 5 are excluded from the national
denition.24 The view is also presented that the national denition encompasses
autonomous vehicles from level 3 to 5, save for vehicles that are only under remote
control, as such vehicles would not comply with the statutory requirement concerning
the presence of a driver in the vehicle. According to the latter view, the denition in
the RTL does not exclude vehicles with very limited participation of the driver, e.g.
cars with a “kill-switch” mechanism, i.e. a mechanism which only allows the operator
to immediately stop the car, or cars in the “platooning” model, in which vehicles are
driven together in a group with the driver sitting only in the vehicle at the head of the
group.25 The relationship between the national denition of an autonomous vehicle
and the commonly used scale of levels of vehicle automation remains, therefore,
ambiguous due to the unclear scope of the requirement concerning the participation
of the person operating the vehicle (vehicle operator) in the national regulation. The
lack of clarity in this regard can be problematic because, according to the respective
national implementing regulation concerning autonomous vehicles, the report on
research works should include an indication of the vehicle’s level of autonomy
according to the SAE classication.26 This lack of clarity does not, however,
prevent considering the entire scale of vehicle automation in the further analysis
in this chapter, even if the use of the most technically advanced vehicles at level 5
(or maybe also at level 4) might currently seem unacceptable in the light of Polish
law. After all, technological progress may result in the further liberalization of the
law in this area, so it is reasonable at this point to consider the issue of liability for
damages caused by autonomous car vehicles, including vehicles with a very high
degree of automation.
tak zwanych pojazdów autonomicznych” [New challenges for tort liability regulated in Polish law
— selected comments in connection with the functioning of so-called autonomous vehicles],
Wroc ławsko-Lwowskie Zeszyty Prawnicze 2020, No. 11, p. 175; G. Urbanik, op. cit., p. 88.
23 J. Loranc-Borkowska, op. cit., p. 170; the author believes that the concept of an autonomous
car in the RTL is thus consistent with the denition contained in Art. 8 (section 5bis) of the Vienna
Convention.
24 J. Kuźmicka-Sulikowska, op. cit., p. 175.
25 G. Urbanik, op. cit., pp. 87‒88.
26 Rozporządzenie Ministra Infrastruktury w sprawie wzoru sprawozdania z prac badawczych
związanych z testowaniem pojazdów autonomicznych oraz ich wyposażenia z dnia 17 października
2018 r. [Regulation of the Minister of Infrastructure on the template of the report on research works
related to testing of autonomous vehicles and their equipment of 17 October 2018], J. of L. 2018,
item 2023. Cf. point 2.14. in the attachment to the cited Regulation which refers to the
SAEJ3016_201609 classication.
63
Civil Liability for Damages Caused by Autonomous Car Vehicles: the Polish Perspective
4. Tort liability of the car possessor
The rst potential basis of tort liability for damages caused by the motion
of autonomous cars that needs to be analysed is Art. 436 Civ.C., which regulates
the liability for damage caused by the motion of a mechanical means of transport
propelled by natural forces. Paragraph 1 of this article regulates the liability of an
independent (owner-like) possessor of a vehicle. In addition, the second sentence of
Art. 436 § 1 Civ.C. claries that if the owner-like possessor gives away her or his
vehicle to a dependent possessor the latter person is liable for damage (e.g. a lessee
or a usufructuary). Article 436 § 1 Civ.C. states that the car possessor is liable on the
same principles as in the preceding article, that is in Art. 435 Civ.C., which in turn
regulates the liability of a person who runs on her or his own account an enterprise
or establishment set in motion by natural forces (steam, gas, electricity, liquid
fuels, etc.). The reference to Art. 435 Civ.C. means that the liability provided for
in Art. 436 § 1 Civ.C. is an instance of strict (risk-based) liability and the possessor
of a vehicle is exempted from liability in three situations: (1) when the damage is
caused by force majeure, (2) when the damage is caused exclusively by the fault of
the person who sustained damage, (3) when the damage is caused exclusively by
the fault of a third party for whom the possessor of the vehicle is not responsible.
Of course, tort liability of the person driving the vehicle is possible, regardless
of whether she or he is the possessor of the vehicle, on the general basis of tort
liability, i.e. Art. 415 Civ.C. The latter provision requires, however, the perpetrator
of the act to be at fault, at least in the form of unintentional fault caused by failure
to exercise due care, whereas Art. 436 § 1 Civ.C., on the other hand, creates
a much more convenient basis for the injured party to claim the strict liability of
the possessor of the vehicle.
Article 436 § 1 Civ.C. (in conjunction with Art. 435 § 1 Civ.C.) addresses liability
for damages caused by vehicle’s motion. This concept of “motion”, according to the
prevailing view, is not limited to strictly kinetic motion, but is understood functionally,
meaning that the vehicle is in motion from the moment its functioning is initiated
until it reaches its destination. As a result, short intervals during the vehicle’s kinetic
motion do not disrupt its functional motion. A proposal was made in legal literature to
separate liability for damages caused by a vehicle from the requirement of “motion”,
as the risks posed by vehicles are not only linked with their motion, whether kinetic or
functional. While this position has been argued for both conventional and autonomous
vehicles, it has been emphasized that, particularly in the context of autonomous
vehicles, it is justied to make civil liability conditional on an autonomous vehicle’s
“active existence”, such as logging on or data processing27. Since Art. 436 § 1 Civ.C.
27 W. Robaczyński, „Czy 'ruch pojazdu' powinien być przesłanką odpowiedzialności za
pojazd autonomiczny?” [Should the ‘vehicle’s motion’ be a premise for liability for an autonomous
vehicle?], Przegląd Sądowy 2022, No. 4, pp. 7, 14–15, summary in English – pp. 17–18.
64 Łukasz Żelechowski
clearly links civil liability with vehicle’s motion, it appears that such a change – if
justied – would necessitate legislative intervention. There are, however, other
potential bases of civil liability for damages caused by autonomous vehicles that
do not expressly require the damage to be caused by the vehicle’s motion. They
are discussed in subsequent sections of this chapter.
Article 436 § 1 Civ.C. unquestionably provides a basis for claiming
compensation for damage caused by the motion of autonomous cars. The concept
of a motor vehicle being set in motion by the forces of nature is broad. It applies
to all vehicles (not just land vehicles) equipped with engines that process natural
forces. Autonomous cars meet the above criterion,28 and the type of their engine
‒ internal combustion, electric, or hybrid ‒ is irrelevant.29 It is justied to assume
that the mere fact that the damage was caused by the motion of an autonomous
vehicle, and not a “conventional” vehicle, does not exclude the application of
Art. 436 § 1 Civ.C. Although this provision came into force at a time when
autonomous vehicles did not exist, it links tort liability to the motion of the vehicle
itself, rather than human conduct, and places liability on the vehicle’s possessor.
This circumstance makes it possible to apply this provision to the motion of
autonomous vehicles in which the participation of the driver (operator) is limited
or even eliminated.
However, the uniqueness of autonomous vehicles raises questions about the
potential application of exemptions from strict liability under Art. 436 § 1 Civ.C.
due to defects in autonomous vehicles. Such defects may play a proportionally
greater role as a possible cause of accidents than in the case of conventional
vehicles, because the driver’s participation in making signicant decisions
regarding the motion of an autonomous vehicle is limited or eliminated, even if
statistically autonomous vehicles might turn out to be safer.30 According to the
prevailing view expressed so far concerning “conventional” vehicles, a technical
failure of a vehicle is not considered a manifestation of force majeure, which is
the rst of the three above-mentioned exemptions from liability under Art. 436 § 1
Civ.C.31 Moreover, the traditional approach excludes the qualication of vehicle’s
defects caused by its manufacturer as justifying an exemption resulting from the
sole fault of a third party.32 It is, however, considered possible for the car possessor
who was liable for the damage to take recourse against the manufacturer of the car.33
28 K Panl, [in:] Kodeks cywilny. Komentarz [Civil Code. Commentary], ed. K. Osajda, Warszawa
2021, Art. 436, comment No. 15; M. Matusiak-Frącczak, Ł. Frącczak, op. cit., p. 120.
29 J. Kuźmicka-Sulikowska, op. cit., p. 172.
30 K. Ludwichowska-Redo, op. cit., p. 207.
31 M Safjan, [in:] Kodeks cywilny. Komentarz [Civil Code. Commentary], vol. 1, ed.
K. Pietrzykowski, Warszawa 2021, Art. 436, comment No. 10; G. Urbanik, op. cit., p. 89.
32 M Safjan, op. cit., Art. 436, comment No. 12, in case law – judgement of the Supreme Court
of 4 October 1966 (II CR 328/66), Legalis, No. 12809.
33 J. Kuźmicka-Sulikowska, op. cit., p. 177.
65
Civil Liability for Damages Caused by Autonomous Car Vehicles: the Polish Perspective
However, as already mentioned, the limitation (or even a possible elimination)
of the driver’s participation in the motion of autonomous vehicles increases the
importance of factors other than faulty decisions of the driver among the possible
sources of damage caused by the motion of such vehicles. This raises questions
about the possibility of departing from the traditional approach to exemptions
from liability under Art. 436 § 1 Civ.C., as far as defects in autonomous vehicles
are concerned.
Regarding the “force-majeure” exemption, its inapplicability, as per the
established view in case law and legal literature, to defects in the vehicle should
be considered valid also in the case of autonomous vehicles. Force majeure must
be related to the existence of unavoidable external factors. A defect inherent in
the vehicle or a failure of the vehicle’s mechanisms are circumstances that do not
meet this requirement, which also remains valid for autonomous vehicles.34
The situation is less obvious with regard to the traditionally accepted
inaptitude of the exemption concerning the sole fault of a third party to exclude the
car possessor’s liability due to the malfunction of a car caused by faulty conduct
on the part of the manufacturer. Applying this traditional approach to autonomous
cars would mean that the possessor of an autonomous car could not be exempted
from strict liability, but she or he could still be entitled to recourse against the
manufacturer.35 However, an opposing liberal approach allowing the application
of this exemption to autonomous cars also has supporters.36 Indeed, the increasing
importance of technical defects as a possible cause of accidents in the case of
autonomous cars, as opposed to conventional cars where the main cause of accidents
still appears to be resting on the imperfections of human conduct, might justify
at least some doubts regarding the relevance of this traditional approach for the
issue of autonomous cars. As a result, it seems that a departure from the traditional
approach in the case of autonomous vehicles would not have to be prima facie
ruled out, although this is a preliminary observation. For such an interpretation
to be adopted, it would be necessary to precisely dene the circumstances
justifying a dierent treatment of technical defects in a non-autonomous vehicle
(no exemption available) and an autonomous vehicle (exemption available). The
question should be considered whether the fact that in the case of autonomous
vehicles the cause of the damage might statistically turn out to be mostly the
defectiveness of the vehicle and not the driver’s error, would be a sucient reason
to justify a shift from the traditional view when one takes into consideration that
34 K. Ludwichowska-Redo, op. cit., p. 208.
35 In this vein K. Ludwichowska-Redo, op. cit., p. 209; G. Urbanik, op. cit., pp. 89‒90;
J. Loranc-Borkowska, op. cit., p. 175, fn. 54; J. Kuźmicka-Sulikowska, op. cit., p. 184.
36 A. Michalak, op. cit., p. 409‒410; also A. Wilk, op. cit., p. 25. The latter author does not,
however, clearly specify whether, in her opinion, the possessor's liability is excluded due to the sole
fault of a third party (producer) or force majeure.
66 Łukasz Żelechowski
liability under Art. 436 § 1 Civ.C., already in its present shape, is not dependent
on human conduct.
A liberal approach could, however, be more readily justied in the future
with regard to the possible exoneration of the owner of an advanced, remotely
controlled autonomous vehicle in the event of damage caused by such a vehicle
solely as a consequence of the failure of the control system resulting from a fault
on the part of the system administrator37 (cf. sections 7 and 8 regarding the liability
of such entities). It seems that in such a case there could also be a possibility of
exoneration of the car possessor due to force majeure when the operation of the
system is disturbed by natural phenomena and cannot be attributed to the fault
of the administrator of such a system. Another situation that might justify the
exclusion of possessor’s liability due to third-party fault as the sole cause of
the damage could be a cyber-attack (hacking) on an autonomous vehicle.38
Summarizing the remarks concerning Art. 436 § 1 Civ.C., it must be concluded
that there is no obstacle to applying the strict liability rule based on this provision
to liability for damages caused by the motion of autonomous cars.
Serious doubts arise, however, regarding the possibility of applying Art. 436
§ 2 Civ.C. to autonomous cars. This provision provides for a derogation from
Art. 436 § 1 Civ.C. In its rst sentence Art. 436 § 2 Civ.C. stipulates that in the
case of a collision of mechanical means of transport, the persons identied in
Art. 436 § 1 Civ.C., i.e. owner-like or dependent car possessors, may claim from
each other the redress of damages only in accordance with the general principles
of tort liability. The reference to “general principles” basically mandates the
application of Art. 415 Civ.C. that requires the existence of a fault on the part
of the perpetrator; the fault should take at least the form of negligence (a lack of
proper care). This means that in the case of a collision of vehicles, the person
liable among the car possessors is the one who acted at least negligently when
driving the car. While Art. 436 § 2 Civ.C. formally provides for an exception to the
general rule contained in Art. 436 § 1 Civ.C., it, however, concerns a case of very
signicant practical importance, as collisions of cars constitute a large part of road
accidents. Simultaneously, the liability of possessors of colliding cars towards
third parties, in particular pedestrians, remains unchanged: it is the strict liability
regulated in Art. 436 § 1 Civ.C. (save for third parties transported out of courtesy,
to which I shall revert).
The application of fault-based liability in situations envisaged by Art. 436
§ 2 Civ.C. inevitably requires the presence of human conduct that led to the
37 Cf. J. Kuźmicka-Sulikowska, op. cit., pp. 185‒186.
38 A. Michalak, op. cit., p. 409, indicating that autonomous vehicles are more vulnerable to
cyber-attacks than non-autonomous vehicles; in a dierent vein ‒ K. Ludwichowska-Redo, op. cit.,
p. 209, who assumes that the car possessor will be liable jointly and severally with the hacker (the
latter would undisputedly bear a fault-based liability under Art. 415 Civ.C.).
67
Civil Liability for Damages Caused by Autonomous Car Vehicles: the Polish Perspective
harmful event and could be assessed in terms of a possible fault. It seems that
the key to assessing the applicability of Art. 436 § 2 Civ.C. in such situations
is the degree of autonomy of vehicles. The potential fault-based liability of the
driver (or rather the operator) of an autonomous vehicle could come into play if
the circumstances indicated a need for the operator to take control of the vehicle
and the design of the vehicle made it possible, but the operator failed to act in
a timely and appropriate manner.39 It should, however, be considered that, along
with the technological advancement of autonomous vehicles, the operator’s
inuence on the vehicle’s motion may be further reduced, and ultimately may
be eliminated. Such a development of autonomous vehicles would best serve the
idea of automated road trac vehicles, e.g. in the case of use of vehicles designed
for people who are disabled to a degree rendering them completely incapable of
operating a vehicle, or people under the inuence of alcohol or other intoxicants.40
While an attempt to establish the fault of operators might already be problematic
with regard to less advanced autonomous cars, it would be rather pointless to
attempt to establish this factor in the case of fully advanced automatic self-driving
cars. For the same reasons, it would be unreasonable to seek to identify in such
cases the driver (other than the vehicle possessor) who would be liable under the
general fault-based tort formula of Art. 415 Civ.C.
As far as collisions between conventional and autonomous cars are concerned,
several scenarios need consideration. First, it would be fairly simple to assess the case
of a collision between a non-autonomous (conventional) vehicle and an autonomous
vehicle that was caused solely by the fault of the possessor of a non-autonomous
vehicle. In this situation, the possessor of the non-autonomous vehicle would be
liable for the damage under Art. 436 § 2 Civ.C.41 Second, complications would arise,
however, if the cause of the collision was both the malfunction of an autonomous
car and the fault of the possessor of a conventional car. In such a scenario, under
the existing rules, only the possessor of the conventional car would be liable for
damage against the possessor of the autonomous car, as well as the former possessor
would have to bear the burden of her or his own damage. This might, however,
raise objections since it would seem just to proportionally distribute the nancial
burden of the liability between both possessors.42 Third, a situation where the driver
of a conventional vehicle would not be at fault and the damage would be caused
solely by the malfunction of the autonomous vehicle, could also raise doubts. There
would then be no basis for liability of the possessor of an autonomous vehicle
(or her/his insurer), and while the possessor of a conventional vehicle would not
39 A. Wilk, op. cit., p. 25‒26; G. Urbanik, op. cit., p. 90, indicating that this would be possible
in a semi-automatic vehicle.
40 A. Michalak, op. cit., p. 412 in fn 89.
41 M. Matusiak-Frącczak, Ł. Frącczak, op. cit., p. 122.
42 K. Ludwichowska-Redo, op. cit., p. 211.
68 Łukasz Żelechowski
be liable against the possessor of an autonomous vehicle either, any of her or his
claims could be directed only to third parties, e.g. the vehicle manufacturer for
liability for a defective product. It has been suggested that in such a scenario, the
possessor of the conventional car should be treated as a non-motorized road user
who could seek redress of damage from the possessor of the autonomous vehicle
under strict liability.43 The a bove suggestion is tempting. It would, of course, require
a certain dierentiation corresponding to the varied degrees of vehicle automation
and the resulting varying inuence of the operator on the motion of the vehicle. As
a result, the chances of establishing the operator’s fault would vary accordingly.
The question of concurring contributory conduct on the part of the possessor of the
conventional car, as a factor potentially justifying a reduction of the compensation
(Art. 362 Civ.C.), could also become relevant in this situation. The disadvantage of
this concept may, however, rest upon drawing an analogy to a non-motorized road
user in a situation involving a collision of vehicles in motion. The latter instance
is obviously regulated in the rst sentence of Art. 436 § 2 Civ.C. concerning the
mutual liability of vehicle possessors. It therefore seems that the implementation
of the above concept would require legislative intervention. Such an intervention
would be desirable. Otherwise, there would be no clear ground for the liability of
the possessor of the autonomous vehicle towards the “innocent” possessor of the
conventional vehicle, who would only have claims against other parties.
Similar problems with similar consequences could arise in the case of
a collision involving only autonomous vehicles when the faulty conduct of any
of the possessors could not be established, but the collision would be caused solely
by a technical malfunction of one or both of the vehicles. Under existing rules,
there would be no civil liability of possessors of both cars against one another in
the described scenario and also – consequently ‒ no liability of their insurance
companies.44
It appears, therefore, desirable to introduce legislative changes that would
allow a more balanced assessment of liability in the case of collisions involving
autonomous cars by putting emphasis on the risk factor connected with a possible
severe malfunction of such cars. Such a development would correspond to the views
expressed in the Polish legal literature that generally (i.e. not necessarily in a direct
reference to the issue of autonomous vehicles) critically assess the criterion of fault
as a decisive criterion in the light of the rst sentence of Art. 436 § 2 Civ.C.45
43 M. Matusiak-Frącczak, Ł. Frącczak, op. cit., p. 122; J. Kuźmicka-Sulikowska, op. cit.,
p. 190.
44 K. Ludwichowska-Redo, op. cit., pp. 212‒213.
45 Ibidem, p. 210; cf.. also M. Wilejczyk, „Odpowiedzialność cywilna w razie zderzenia się
pojazdów de lege ferenda” [Civil liability in the case of a collision of vehicles de lege ferenda], [in:]
O dobre prawo dla ubezpieczeń. Księga jubileuszowa Profesora Eugeniusza Kowalewskiego [Good
law for insurance. Jubilee book of Professor Eugeniusz Kowalewski], ed. E. Bagińska et al., Toruń
2019, p. 551 et seq., citing further views in this vein in Polish legal literature.
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Civil Liability for Damages Caused by Autonomous Car Vehicles: the Polish Perspective
Next, Art. 436 § 2 Civ.C. contains the second sentence which provides a further
exception from the strict liability regulated in Art. 436 § 1 Civ.C., as it stipulates
that possessors of vehicles shall also be liable only under the general rules (i.e.
essentially fault-based liability) towards those whom they have transported out of
courtesy. It is irrelevant in the context of the second sentence of Art. 436 § 2 Civ.C.
whether the damage sustained by a third party carried out of courtesy results from
a collision with another vehicle or other circumstances. For reasons already set out
above, in the case of autonomous vehicles with an advanced level of automation
in which the operator could not be held to be at fault for the accident, there would
be no liability on the part of the car possessor towards persons transported out of
courtesy. These persons would be able to address their claims only to other parties,
e.g. to the car manufacturer on account of liability for a defective product.46 It
should be noted that the current law, which bases the liability of the car possessors
towards the people transported out of courtesy on fault, is also being criticised.47
In conclusion, it can be expected that the further advancement of autonomous
vehicle technology, limiting or even eliminating the operator’s inuence on the
vehicle’s motion, will reduce the importance of fault-based liability as regulated
in Art. 436 § 2 Civ.C. This should increase the importance of car manufacturers’
liability, notably under the liability regime for a defective product.48 The latter
regime is dealt with in the next section of this chapter.
5. Liability for an autonomous car as a defective product
The regime of liability for a defective product provides for strict liability that is
borne – essentially – by the producer of the product towards anyone who has been
harmed by a defective product, provided that the damage remains in an adequate
causal link with the defect of the product (Art. 4 Dir. 85/374). The regulation on
liability for a defective product in the Civil Code (Arts. 4491 et seq.) implements
the EU standards contained in the Dir. 85/374. In the Polish regulation, the term
“hazardous product” (produkt niebezpieczny) has been employed, but for the sake
of terminological consistency with the Dir. 85/374, the term “defective product”
will be used hereinafter. Legal researchers are probably prompted to consider
liability for damage caused by autonomous vehicles in terms of liability for
a defective product by the fact that autonomous cars are a technological novelty.
This, somewhat intuitively, may lead to treating them as hazardous. Autonomous
vehicles, as such, should not, however, be considered unsafe products.49 According
46 M. Matusiak-Frącczak, Ł. Frącczak, op. cit., p. 123.
47 K. Ludwichowska-Redo, op. cit., pp. 213‒214.
48 A. Michalak, op. cit., p. 414.
49 L. Helińska, B. Paczocha, A. Piskorz, op. cit., p. 42.
70 Łukasz Żelechowski
to Art. 4491 § 3 Civ.C., a defective product is any product that does not provide
the safety that one would expect when using such product in a normal manner.
This provision also species that the circumstances surrounding the introduction
of a product to the market, in particular, the way of presenting it and information
provided to a consumer about properties of the product, shall determine whether
the product is defective; one may not maintain that a product does not provide
safety merely because a similar product in an improved form has been introduced
to the market.
For a specic autonomous vehicle to be considered a defective product in
the legal sense, it is, therefore, necessary to dene the level of safety that can be
expected from an abstract model of such a vehicle. It is not the level of safety of
the car in general, but the level of safety of the autonomous vehicle.50 Moreover,
it seems that the abstract model of a non-defective autonomous vehicle should
not be uniform, as the expected level of safety could vary depending on the level
of the vehicle’s automation. The fact that a given vehicle that is characterized by
a high level of autonomy has never been placed on the market does not make it
impossible to dene an abstract model of such a vehicle by determining the level
of safety expected from it.51 The fact that some possible aws in technologically
novel products might not be fully known when they are rst introduced to the
market in terms of their long-term eects, should only add to the need to establish
an abstract level of their safety, at least in the light of the state of technical and
scientic knowledge at the time of their introduction to the market. One could even
consider introducing further-reaching changes consisting in extending the period
of liability for an innovative product or eliminating (or limiting) the possibility
for the manufacturer to free herself or himself from liability if she or he proves that
the state of scientic and technical knowledge at the time the product was put into
circulation was not such as to enable the existence of a defect to be discovered,
which will be discussed later in this section of the chapter.
A “product” within the meaning of the provisions concerning this regime of
liability at hand means a movable even if it has been attached to another thing;
a product also means animals and electricity (Art. 4491 § 2 Civ.C.). An autonomous
vehicle is certainly a moveable.52 It is, however, a very unique moveable, since
computer software is essential for its functioning. For this reason, the question
of product liability of both the car manufacturer and the software manufacturer
should be examined.53
50 Ibidem.
51 Dierently L. Helińska, B. Paczocha, A. Piskorz, op. cit., p. 42, with regard to vehicles on
the 5th level of the SAE scale.
52 In the light of Polish civil law things ‒ movables or immovables ‒ are only tangible objects
(Art. 45 Civ.C.).
53 M. Matusiak-Frącczak, Ł. Frącczak, op. cit., pp. 121‒122.
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Civil Liability for Damages Caused by Autonomous Car Vehicles: the Polish Perspective
According to the prevailing view, computer programs as such (standalone
software) are not movables within the meaning of Art. 45 Civ.C. and Art. 4491 § 2
Civ.C., but intangible objects. If they are, however, incorporated into a product
(movable), they may determine its hazardous properties.54 As a consequence,
the liability of the producer of an autonomous car for damages caused by the
vehicle and resulting from defects in the software used in it, cannot be ruled out,
if the hazardous properties of the software have been revealed in the course of the
normal use of the car, and in the light of the scientic and technical knowledge
at the time when the given car was placed on the market, the producer knew or
should have known about those hazardous properties.
Due to the tangible nature of a “product” required by its denition in Art. 4491
§ 2 Civ.C., the liability of the producer of software used in an autonomous car
under the product liability regime is debatable. The ramications, however, of
excluding software as such from the scope of the regime in question, and leaving it
entirely within the realm of fault-based liability under Art. 415 Civ.C., might raise
objections. It has been argued that nowadays conning the concept of a product
to tangible objects has no convincing justication, considering the protective
motives underlying the product liability regime. Therefore, it would be desirable
to adopt a solution, be it in the form of a legislative change or through the case-law
of the CJEU, that software or digital content may be considered a product under
the Dir. 85/374, and making the product available to the recipient constitutes an act
of putting it on the market for the sake of applying the product liability regime.55
The fact that computer software is an essential element for the functioning
of an autonomous vehicle raises another question, namely whether the software
producer could be held liable under this special regime not as the producer of the
“product”, but as the producer of a “component part” of a defective product (if she
or he is a dierent person than the manufacturer of the vehicle). In this case, the
respective basis would be Art. 4495 § 1 Civ.C. which stipulates that the producer
of materials, raw materials, or a component part of a product bears the same
liability as the producer of the product unless the damage was caused solely by the
product’s defective construction or by following the instructions of the producer.
To analyse this issue, it is necessary to refer to the concept of a “component part”
within the meaning of Art. 3 section 1 Dir. 85/374 and the implementing Art. 4495
§ 1 Civ.C. While in the light of the Dir. 85/374 the concept of the product relates
only to tangible objects, the Directive does not contain any wording stating that
54 Among others N. Baranowska, P. Machnikowski, „Odpowiedzialność za produkt wobec
rozwoju nowych technologii” [Liability for defective products with respect to the development
of new technologies], Studia Prawa Prywatnego 2017, No. 2, pp. 39‒40, pointing out that this
issue has not been clearly resolved under Directive 85/374; L. Bosek, „Perspektywy rozwoju
odpowiedzialności cywilnej za inteligentne roboty” [Perspectives on development of civil liability
for intelligent robots], Forum Prawnicze 2019, No. 2, p. 8.
55 N. Baranowska, P. Machnikowski, op. cit., p. 44.
72 Łukasz Żelechowski
a component part within the meaning of the Directive must be a tangible object.56
Furthermore, the decisive conclusion should not be derived from the fact that
Polish civil law recognizes a “component part” of a thing as a tangible object.57
Given the needs arising from technological advancement, it is justied to extend
the application of the provisions governing the liability for defective products
borne by producers of component parts also to producers of software and digital
content used in movables (such as autonomous vehicles) if they are defective
and cause the movable to malfunction.58 For the sake of avoiding a lack of clarity
regarding the notion of the product and its component parts the scope of those
concepts could be further claried by the lawmaker or in case-law.59
Furthermore, after the product has been placed on the market, the software
used in it may be updated by its producer. It does not appear justied to hold the
producer of the entire product responsible for damages caused by the updated
software.60 This issue may concern not only positive updates but also the absence
of an update required to ensure the safety of a product containing digital content
(such as an autonomous vehicle), e.g. to protect against new forms of cyberattacks.
It seems that the best way to conrm the liability of the software producer under
the product liability regime would be to normatively modify the concept of
a “product”, as well as a “component part” of a product by explicitly including
software and digital content in the scope of these concepts. Such changes would
have the eect of broadening the scope of entities liable under this special regime,
thus providing better protection to users of products with digital content.
It might also be desirable to introduce an express obligation to supply an update
of the software to ensure the safe functioning of the product with digital content
throughout the entire duration of its use, given that technological dangers might
56 Ibidem.
57 Cf. Art. 47 § 1 Civ.C.; only exceptionally law allows treating intangible objects as component
parts – cf. Art. 50 Civ.C.
58 In this vein – N. Baranowska, P. Machnikowski, op. cit., p. 44, but it seems that the authors
make a de lege ferenda suggestion, as they put forward a valid argument that adopting such a solution
currently without simultaneously recognizing standalone software as a product within the meaning
of the Dir. 85/374 would lead to legal inconsistency since the producer of the digital content would
not be liable for damages caused by placing it on the market otherwise than on a tangible medium,
but could be liable as the producer of the component part.
59 According to the “Report on the safety and liability implications of Articial Intelligence, the
Internet of Things and robotics” from the European Commission, February 19, 2020, COM(2020)
64 nal, p. 14: “Although the Product Liability Directive’s denition of product is broad, its scope
could be further claried to better reect the complexity of emerging technologies and ensure that
compensation is always available for damage caused by products that are defective because of software
or other digital features. This would better enable economic actors, such as software developers, to
assess whether they could be considered producers according to the Product Liability Directive”.
60 N. Baranowska, P. Machnikowski, op. cit., pp. 44‒45, making an exception for cases where
an update was needed to remove a defect that already existed at the time the product was placed on
the market.
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Civil Liability for Damages Caused by Autonomous Car Vehicles: the Polish Perspective
emerge after the product has been placed on the market. Under the current regime
of the Dir. 85/374 the producer may avoid liability by demonstrating that the state
of scientic and technical knowledge at the time the product was introduced to the
market was not such that the existence of the defect could be discovered (the so-
called “later defect defence”; Art. 4491 § 3 Civ.C., Art. 7 (e) Dir. 85/374). It has been
pointed out that there could be a potential increase in the use of the “later defect
defence” in such situations, and, therefore the notion of “putting into circulation”
that is currently used in the Dir. 85/374 could be revisited to consider the fact that
products may change and be altered.61 However, Art. 15 (1) (b) Dir. 85/374 already
allows Member States to derogate from Art. 7 (e) Dir. 85/374 and maintain or, subject
to the procedure set out in Art. 15 (2) Dir. 85/374, provide in their domestic laws that
the producer shall be liable even if she or he proves that the state of scientic and
technical knowledge at the time the product was put into circulation was not such
that the existence of a defect could be discovered. The Polish lawmaker did not take
this opportunity and did not derogate from the “later defect defence”. Although this
chapter does not purport to address whether a general elimination of this defence
within the product liability regime would be desirable, it appears reasonable to
accept that such a product-specic elimination with regard to products with digital
content (including autonomous vehicles) should be recommended. A respective
adjustment could consist in introducing the obligation to consider also the state
of knowledge when the defect occurred.62 This could take place either through an
amendment to the Dir. 85/374, or, even under the current wording of the Dir. 85/374,
through a legislative change in Polish law, given that Member States are allowed to
derogate from Art. 7 (e) Dir. 85/374. On the other hand, issues regarding possible
contributory negligence on the part of the vehicle’s operator resulting from a failure
to download a safety update might also become relevant in this context.63
Another drawback connected with the application of the product liability regime
in its current shape to autonomous vehicles is caused by signicant limitations of
liability for damage to property,64 which are also largely derived from Dir. 85/374
(cf. Art. 9 (b) Dir. 85/374). First, the compensation for damage to property does not
include damage to the product itself (Art. 4497 § 1 Civ.C.). Second, the compensation
does not include the loss of prots (Art. 4497 § 1 Civ.C.). Third, compensation cannot
be claimed if the damage to property does not exceed the equivalent of 500 EUR
(Art. 4497 § 2 Civ.C.) and, fourth, a manufacturer is liable for damage to property only
if the thing destroyed or damaged is considered an item which is usually intended
for personal use and the aggrieved party primarily used it for this purpose (Art. 4492
Civ.C.). In the context of liability for damages caused by an autonomous vehicle,
61 Cf. “Report on the safety…”, p. 15.
62 N. Baranowska, P. Machnikowski, op. cit., p. 44.
63 Ibidem.
64 K. Ludwichowska-Redo, op. cit., p. 216.
74 Łukasz Żelechowski
the last limitation may have particularly severe consequences, e.g. in the case of
a taxi car (used for professional purposes) that has been damaged after having been
hit by an autonomous vehicle in motion. The catalogue of these limitations could,
therefore, be revised with the view to improving the prospect of redress for damage
to property caused by autonomous vehicles.
On the other hand, it has been raised that the current shape of the general
limitations of strict liability for a defective product (i.e. limitations that apply
to any damage, be it damage to a person or property) could be insucient in
the context of autonomous vehicles. Suggestions have been made to introduce
a specic limitation allowing a shift of civil liability from the producer to the
vehicle operator if the producer could prove that the operator was in a position to
avoid the accident by taking control of the vehicle, especially when the vehicle
signalled an imminent danger.65
6. Tort liability of the organizer of research works concerning
autonomous cars
The fact that Polish law allows for research works involving the testing of
autonomous vehicles on public roads (cf. section 2) raises the question of the civil
liability of the organizer of such works. This question is all the more important
as the application for a permit to carry out research works must be accompanied
by a document conrming the conclusion of a compulsory insurance contract
covering the liability of the organizer (Art. 65l section 4, p. 1 RTL). The provisions
of civil law do not provide, however, a separate basis for the civil liability of the
organizer of such works. As a result, doubts are expressed about the existence of
such grounds for liability, assuming that the obligation to conclude an insurance
contract cannot itself create a basis for civil liability, because insurance liability
cannot exist without the underlying civil liability.66 However, the view regarding
the alleged lack of grounds for the organizer’s tort liability is not necessarily
justied. After all, the grounds for liability already provided for in civil law,
such as the general basis of tort liability (Art. 415–416 Civ.C.), may be applied,
although surely the requirement to establish a fault on the part of the organizer
of the research works may limit the practical signicance of this liability in
comparison to the strict liability of the car possessor or the producer of a defective
product. One should not rule out, however, the strict liability of the organizer of
research works based on Art. 435 Civ.C., which regulates the liability of a person
who runs on her or his own account an enterprise or establishment set in motion
65 M. Matusiak-Frącczak, Ł. Frącczak, op. cit., p. 122.
66 M. Czenko, O testowaniu… (an on-line comment).
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Civil Liability for Damages Caused by Autonomous Car Vehicles: the Polish Perspective
by natural forces (steam, gas, electricity, liquid fuels, etc.). Such a person is liable
for any personal or property damage caused by the operation of the enterprise or
establishment unless the damage is due to force majeure or is solely caused by
a fault on the part of the aggrieved party or a third party for whom the person
running an enterprise or establishment is not responsible.
7. Liability of the administrator of an IT system managing
the remote-controlled trac of autonomous cars
Along with technological progress, autonomous remote-controlled vehicles
may gain in importance. With regard to the damage caused by the motion of
such vehicles resulting from a failure of the remote control system, the question
is raised whether liability should be borne in such an instance by the possessor
of the car according to Art. 436 § 1 Civ.C., who would then be entitled to
recourse against the supplier of defective software, or, alternatively, such an
event should be classied as a completely separate cause of damage that is not
related to the motion of the vehicle itself. As for the latter option, it is posited to
implement rules regulating the liability of entities operating car trac control
centres if malfunctions of such centres lead to damage, and this liability should
supersede the liability of car possessors.67 It seems, however, that de lege lata the
respective basis for liability of such entities could already be found in Art. 435
Civ.C. regarding the above-mentioned strict liability for damages caused by the
functioning of an enterprise that relies, inter alia, on the use of electricity in its
operational activity (cf. remarks concerning Art. 435 Civ.C. in section 6). The
open question, however, could be, rst, whether such liability should be even
stricter (e.g. take the form of absolute liability without the possibility of relying on
a “force-majeure” exemption), and second, whether such a unique liability regime
would only constitute an alternative to the liability of the autonomous vehicle’s
possessor, or would supersede this liability. Each of these issues would require
a very careful and balanced consideration.
8. Tort liability for articial intelligence in the context
of autonomous cars
Developments concerning the regulation of the issue of liability for damage
caused by the functioning of AI also involve a potential tort liability for
damage caused by articial intelligence in the context of using AI systems to
67 J. Kuźmicka-Sulikowska, op. cit., pp. 185, 190.
76 Łukasz Żelechowski
ensure the functionality of autonomous vehicles. Legislative actions planned at the
EU level will certainly be of key importance for the possible formation of specic
grounds for tort liability in this area. In that regard, one needs to mention the
resolution of the European Parliament of 20 October 2020 with recommendations
to the Commission on a civil liability regime for articial intelligence.68 This
proposal distinguishes between the strict liability of operators of high-risk AI
systems (Arts. 4‒7) and liability based on fault for other AI systems (Arts. 8‒9).
“High-risk” is dened in Art. 3 point (c) of the proposal as meaning a signicant
potential in an autonomously operating AI system to cause harm or damage to one
or more persons in a manner that is random and goes beyond what can reasonably
be expected; the signicance of the potential depends on the interplay between
the severity of possible harm or damage, the degree of autonomy of decision-
making, the likelihood that the risk materializes and the manner and context in
which the AI system is being used. As far as the use of AI in autonomous vehicles
is concerned, it might be dubious whether the regulations on civil liability for
AI could provide a one-size-ts-all solution for AI systems applied in vehicles
as being either “high-risk” or “other” AI systems, considering the varying levels
of automation of vehicles. At least concerning fully autonomous cars, it seems
appropriate to assume that the fact that these essentially AI-controlled vehicles
would move in public spaces and could cause signicant harm to such important
legal interests as life, health, and property, as well as expose the public at large to
risks, could justify treating them as operated by “high-risk” AI systems.69
The person liable in the light of the proposal is the “operator” of the AI. The
proposal distinguishes between the frontend and backend operators. A “frontend
operator” means any natural or legal person who exercises a degree of control
over a risk connected with the operation and functioning of the AI system and
benets from its operation (Art. 3 point (e) of the proposal). In turn, the “backend
operator” means any natural or legal person who, on a continuous basis, denes
the features of the technology and provides data and an essential backend support
service and therefore also exercises a degree of control over the risk connected
with the operation and functioning of the AI system (Art. 3 point (f) of the
proposal); the “backend operator” should be liable under the proposal as long
as her or his liability is not already covered by Dir. 85/374/EEC (Art. 3 point
(d) of the proposal). In the case of autonomous vehicles, the frontend operator
would be the natural person deciding whether to use the vehicle, choosing the
destination, or – depending on the level of autonomy of the vehicle – dening other
travel parameters. On the other hand, the backend operator could be considered
to be the manufacturer of the car, manufacturer of the car software, or other entity
providing services related to autonomous vehicles (e.g. administrator of an AI
68 OJ C404, 6.10.2021, pp. 107–128.
69 Cf. “Report on the safety…”, p. 16.
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Civil Liability for Damages Caused by Autonomous Car Vehicles: the Polish Perspective
system for remote control of the trac of such vehicles) when any of these parties
would control an autonomous vehicle continuously by providing such services as,
e.g. cloud navigation services, updating map data or the software installed in the
vehicle, or deciding when the vehicle needs specic maintenance.70 With regard
to autonomous cars, it may be dicult to clearly determine the liable entity in
specic cases, especially as there may ultimately be two car operators of the same
car, each with dierent functions. In the expert report published by the European
Commission,71 the view was expressed that in cases of strict liability, liability
should be borne by this operator who has more control over the risks posed by the
operation, whereas an optimal solution allowing to avoid uncertainty, would be
a legislative determination of which operator is liable under which circumstances,
for instance by deciding that for autonomous vehicles with a level of automation
of 4 or 5, the liable person is the provider running the system who enters the
vehicle into the respective national registry of vehicles.
9. Seller’s liability for physical defects of an autonomous car
Apart from the issue of tort liability, attention should also be paid to the issue
of liability of the seller of an autonomous vehicle towards the buyer for the defects
in the vehicle. These issues are regulated in the provisions on the specic liability
of the seller, which is the warranty for defects in the sold item (Arts. 556 et seq.
Civ.C.). It is a special instance of strict contractual liability. The redress of damage
is not the main remedy available to the buyer under the warranty regime, because
the buyer may withdraw from the sales contract, make a declaration concerning the
reduction of the sales price, demand that the defective thing be replaced for one free
from defects, or demand that the defects be removed (Arts. 560 and 561 Civ.C.). If
any of the above special rights under the warranty regime have been exercised by the
buyer, she or he may also demand redress of damage sustained by having concluded
the contract without being aware of the existing defect, even if the damage was the
consequence of circumstances for which the seller is not liable (basically meaning
that the seller is not at fault). In particular, the buyer may seek redress of damage by
claiming reimbursement for the costs of contracting, receiving, transporting, safe-
keeping, and insuring the sold item, as well as reimbursement for outlays made to
the extent that she or he derived no prot from those outlays (Art. 566 § 1 Civ.C.,
the rst sentence, and Art. 566 § 2 Civ.C.). This right to claim damages under the
warranty regime does not prejudice the provisions on the redress of full damage
70 Liability for articial intelligence and other emerging digital technologies, Luxembourg
2019, p. 41, https://op.europa.eu/en/publication-detail/-/publication/1c5e30be-1197-11ea-8c1f-
01aa75ed71a1/language-en/format-PDF/source-247772326 (accessed 20.06.2022).
71 Ibidem, pp. 41‒42.
78 Łukasz Żelechowski
under the general principles (Art. 566 § 1 Civ.C., the second sentence); relying on
this option renders it necessary to demonstrate a fault on the part of the seller, at least
in the form of negligence (a lack of due care). Rights under the warranty regime
are vested in the seller against the buyer. They are not granted to third parties who
suered damage as a result of the sold item’s defects; in such cases, third parties
may only seek redress of damage under the regime of tort liability and liability for
a defective product72 discussed in earlier sections of the chapter.
The situation in which the automatic functions of an autonomous car do not
work properly can be classied as a physical defect, occurring when the sold item
does not have the properties that a thing of that type should have, given the aim
specied in the contract or arising from circumstances or the purpose of the item
(Art. 5561 § 1, p. 1 Civ.C.)73. It seems that physical defects of an autonomous car
could also be established in the situation in which an autonomous car would not
have the properties of which the seller has assured the buyer (Art. 5561 § 1, p. 2
Civ.C.) or would not be t for the purpose that the buyer informed the seller of at
the time the sales contract was concluded and the seller did not make reservations
regarding this purpose (art. 5561 § 1, p. 3 Civ.C.).
Malfunction of an autonomous car can, however, be in many instances attributed
to defects of the software. Against this background, it may be problematic whether
the concept of a physical defect of a vehicle also includes a defect of the software
installed in it, as the software is an intangible good and its defect does not mean
that the car’s physical components are defective. One of the proposed solutions is to
consider the vehicle’s software as a “component part” of a thing (a car) within the
meaning of Art. 47 § 2 Civ.C., which would allow classifying the defectiveness of
software installed in an autonomous vehicle as a physical defect of the vehicle itself.74
This view cannot be accepted because a component part of a thing according to the
current denition in Polish civil law may be, as already mentioned above (cf. section 5),
only a tangible object, subject to exceptions explicitly provided for in the law.
Another suggested approach is linked with the fact that software is protected
by copyright and, therefore, a defect in the software may be considered a potential
defect in the intellectual property right (copyright) as the object of sale. This
would be prima facie a viable solution in the light of Art. 555 Civ.C. which
stipulates that the provisions on the sale of things shall apply respectively to the
sale of, i.a. rights. As a result, it is thought that Art. 555 Civ.C. could allow the
provisions of the Civil Code on the warranty to be applied to software installed
in an autonomous car.75 This position may, however, also raise objections. First,
72 There is no need to address in this chapter the contentious issue of whether the liability
regime for a defective product belongs to the tort regime or not.
73 J. Loranc-Borkowska, op. cit., p. 170.
74 Ibidem.
75 So, L. Helińska, B. Paczocha, A. Piskorz, op. cit., p. 38.
79
Civil Liability for Damages Caused by Autonomous Car Vehicles: the Polish Perspective
it is not obvious that it would be possible to respectively apply the concept of
a physical defect via Art. 555 Civ.C. to the intangible subject matter of intellectual
property rights. The traditional view rejects this possibility.76 Second, and most
importantly, the sale of an autonomous car will not, in practice, be accompanied
by the sale of copyright to software installed in the car, because the copyright
holder will not be interested in transferring to the individual buyer the rights to the
software used in an innite number of cars of a given vehicle model. Therefore, in
this case, seeking the possibility of applying the warranty regime in the contract
of sale of rights appears pointless. Rather, the sale of an autonomous vehicle will
be accompanied by a non-exclusive license agreement or sub-license agreement
for the use of a computer program.77
Another possible trail could be derived from the fact that computer programs
are protected by copyright as “works”, and there is a separate regime of liability
for defects in the work regulated in Art. 55 section 1 of the Law on Copyright and
Related Rights.78 This option is also not without its drawbacks. First, the personal
scope of this regulation is limited to contracts between actual authors of works and
their contractors.79 In a typical situation, the buyer of an autonomous car will not,
however, conclude a contract, for example, a license contract, directly with a natural
person who is the developer of the software, but with the seller of the car, who will
have to obtain her or his own title to conclude contracts regarding copyright.
Second, the literal wording of this provision implies that its scope is limited
only to defects in commissioned works. While according to the prevailing view,
it also applies to existing works that are the subject of assignment agreements
or license agreements,80 there is a margin of uncertainty as to whether it would
apply to existing works.81 If one were to follow a narrow interpretation of Art. 55
76 Generally, with regard to defects in the right as the subject of sale ‒ S. Buczkowski, [in:] Kodeks
cywilny. Komentarz, t. 2 [Civil Code. Commentary, Vol. 2], eds. Z. Resich, J. Ignatowicz, Warszawa
1972, p. 1283; directly in relation to the defects of the patent ‒ K. Szczepanowska-Kozłowska, [in:]
E. Nowińska, U. Promińska, K. Szczepanowska-Kozłowska, Własność przemysłowa i jej ochrona
[Industrial property and its protection], Warszawa 2014, p. 117; dierently ‒ M. du Vall, E. Traple,
[in:] Prawo patentowe [Patent law], ed. E. Traple, Warszawa 2017, p. 461.
77 Permitted private use does not cover the use of computer programs (Art. 77 in conjunction
with Art. 23 of the Copyright Act – cf. next footnote).
78 Ustawa o prawie autorskim i prawach pokrewnych z dnia 4 lutego 1994 [Act on copyright
and related rights of 4 February 1994], consolidated text, J. of L. 2021, item 1062.
79 A. M. Niżankowska-Horodecka, [in:] Ustawy autorskie. Komentarze, t. 1 [Copyright Acts.
Commentaries, Vol. 1], ed. R. Markiewicz, Warszawa 2020, p. 1306.
80 J. Barta, R. Markiewicz, [in:] Prawo autorskie i prawa pokrewne. Komentarz [Law on
copyright and related right. Commentary], eds. J. Barta, R. Markiewicz, Warszawa 2011, p. 377;
T. Targosz, [in:] Prawo autorskie i prawa pokrewne. Komentarz [Law on copyright and related right.
Commentary], ed. D. Flisak, Warszawa 2014, p. 811.
81 In this vein A. Gołaszewska, [in:] Prawo autorskie i prawa pokrewne. Komentarz [Law
on copyright and related right. Commentary], eds.. W. Machała, R. M. Sarbiński, Warszawa 2019,
p. 959.
80 Łukasz Żelechowski
section 1 of the Law on Copyright and Related Rights, this provision would not
be useful for a buyer who concluded a contract for the sale of an autonomous
vehicle equipped with software that had been generally developed for a given
model of a vehicle.82 As a consequence, the issue of the seller’s liability for defects
in the software installed in the autonomous car should preferably be contractually
regulated between the parties in the sales agreement, because indicating the
statutory basis for this liability may currently raise doubts.
It seems that to ensure the best possible protection for the buyer with regard
to the seller’s liability as provided for by law, the optimal solution should be rather
straightforward. An autonomous vehicle is a very complex device that combines
elements of software and hardware. This does not, however, change the fact
that an autonomous vehicle is rst and foremost a thing (tangible object) that is
the subject of the sales agreement. For this reason, it would not be appropriate
to construe defects in an autonomous vehicle caused by malfunctioning of
the digital content as pure software defects. These are rather defects in the
tangible item with digital content, treated as a single complex object of sale.
Therefore, the liability for defects in such a vehicle should rather be linked
with the warranty regime under the sales contract also when they are caused by
malfunctions of the digital content that is installed in the vehicle. A signicant
change in this direction is provided for in the Dir. 2019/771 on certain aspects
concerning contracts for the sale of goods (Dir. 2019/771),83 which should have
been implemented into Polish law by January 1, 2022.84 Article 2 section 5
point (b) Dir. 2019/771 classies as “goods” also any tangible movable items
that incorporate or are inter-connected with digital content or a digital service
in such a way that the absence of that digital content or digital service would
prevent the goods from performing their functions and denes such goods as
“goods with digital elements”. Furthermore, Art. 10 section 1 sentence 2 Dir.
2019/771 introduces liability of the seller of goods with digital elements for
a lack of conformity of such goods with the sales contract, and Art. 10 section
2 and 3 regulate the seller’s additional liability when the sales contract provides
for a continuous supply of the digital content or digital service over a period of
time. Proper implementation of Dir. 2019/771 into Polish law should be of great
importance for establishing the basis for liability of the seller of autonomous
cars in the event of defects resulting from the malfunction of the software
installed in the vehicle.
82 L. Helińska, B. Paczocha, A. Piskorz, op. cit., p. 38.
83 Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May 2019
on certain aspects concerning contracts for the sale of goods, amending Regulation (EU) 2017/2394
and Directive 2009/22/EC, and repealing Directive 1999/44/EC, OJ L136, 22.5.2019, pp. 28–50.
84 As of 12 May 2022, works are underway on the draft act implementing the Directive into
Polish law.
81
Civil Liability for Damages Caused by Autonomous Car Vehicles: the Polish Perspective
10. Issue of insurance against civil liability in respect of the use
of autonomous vehicles
The issue of insurance against civil liability in respect of the use of
autonomous vehicles is of obvious importance. In cases where the damage was
caused by the motion of a motor vehicle, compensation claims are satised by
the insurance company under the compulsory third-party liability insurance of
motor vehicle possessors or by the Insurance Guaranty Fund in those situations
where no insurance cover exists that are listed in Art. 98 of the Act of 22 May
2003 on compulsory insurance, the Insurance Guaranty Fund, and the Polish
Oce of Motor Insurers.85 In practice, the insurer (or the Fund) is the rst point
of claim for compensation for personal injury or material damage, and this is
the easiest way for the injured party to get compensation. Autonomous cars are
not treated in Polish law (or in EU law in the Dir. 2009/103 which harmonizes
issues of insurance against civil liability in respect of the use of motor vehicles)
any dierently from conventional cars as regards motor insurance. This means
that autonomous vehicles, like all vehicles, must be covered by motor liability
insurance.
However, as indicated above, in the case of autonomous vehicles, there
is a limitation, and with time, perhaps even the elimination of the inuence of
the vehicle’s operator on the vehicle’s motion. This circumstance increases the
importance of other potential events causing damage in connection with the motion
of such vehicles, such as software defects, lack of software updates, break-ins into
the vehicle’s information system, failure of navigation systems, or the inability
to take control by a human in the event of an imminent accident. These factors
may justify a wider delineation of the scope of parties on which the insurance
obligation should be imposed than just possessors of autonomous vehicles, e.g.
car manufacturers or software suppliers.86 Against this background, the current
personal scope of compulsory insurance against civil liability in respect of the use
of motor vehicles in Polish law may be insucient for the proper allocation of the
nancial burden of redressing damage caused by autonomous vehicles. To some
extent, the need to extend the scope of parties required to obtain civil liability
insurance is reected by the already applicable requirement for an insurance
contract to be concluded by an entity applying for a permit to conduct research
works involving autonomous vehicles (cf. section 6). It is proposed, as a possible
85 Ustawa o ubezpieczeniach obowiązkowych, Ubezpieczeniowym Funduszu Gwarancyjnym
i Polskim Biurze Ubezpieczycieli Komunikacyjnych z dnia 22 maja 2003 r. [Act on compulsory
insurance, the Insurance Guarantee Fund and the Polish Bureau of Motor Insurers of 22 May 2003],
consolidated text, J. of L. 2021, item 854.
86 A. Wilk, op. cit., p. 26, pointing to eorts in the UK to develop a new shape for autonomous
vehicle insurance.
82 Łukasz Żelechowski
future legislative solution, to introduce additional obligatory insurance against
civil liability in respect of the use of autonomous vehicles and to create a separate
insurance fund for autonomous vehicles, similar to the existing Insurance Guaranty
Fund, in which, apart from vehicle possessors, also vehicle manufacturers and
software suppliers should participate.87 Since the issues of insurance against civil
liability in relation to the use of motor vehicles are already harmonized in Dir.
2009/103, and further legislative action with regard to insurance against liability
caused by robots and AI systems is of interest to the European Parliament88 and
the Commission89, appropriate changes could be provided for in EU law.
It is dicult to predict at this point to what extent the popularization of
autonomous vehicles will aect the cost of insurance. On the one hand, the fact
that these vehicles are controlled by a computer may lead to the recognition of such
vehicles as safer than conventional ones, which are controlled by humans with
all the imperfections of human reactions. This could imply that insurance prices
in the case of autonomous cars should drop. On the other hand, minimizing the
participation of the autonomous vehicle operator in the vehicle’s motion, as well
as increasing technological advancement of these vehicles, may mean a greater
risk of accidents caused only by technical failures, which in turn may increase
insurance prices.90 It seems reasonable to suppose that the technological novelty
of autonomous vehicles combined with the lack of broader data on accidents
involving such cars outside the sphere of test works may mean that, initially,
the cost of insurance against civil liability in respect of damage caused by such
vehicles will be higher than in the case of conventional vehicles. If, over time,
statistics relating to the real trac of autonomous vehicles on public roads show
that this trac causes less damage than conventional vehicle trac, insurance
costs could drop.91 It can also be assumed that the reactions of the insurance sector
may dier depending on the level of vehicle automation.
11. Outcome
Under the law currently in force, civil liability for damage caused by the use
of autonomous vehicles may be based on the strict liability of the car possessor as
provided for in Art. 436 § 1 Civ.C. It should be expected, however, that the increase
in the technological advancement of autonomous vehicles, leading to the reduction
87 G. Urbanik, op. cit., pp. 91‒92.
88 European Parliament resolution of 16 February 2017 with recommendations to the
Commission on Civil Law Rules on Robotics, OJ C252, 18.07.2018, pp. 239–257.
89 Cf. “Report on the safety…”, p. 16.
90 A. Wilk, op. cit., p. 27 pointing to both opposing arguments.
91 J. Kuźmicka-Sulikowska, op. cit., p. 191.
83
Civil Liability for Damages Caused by Autonomous Car Vehicles: the Polish Perspective
or even elimination of the role of autonomous vehicle operators, will result in
a gradual reduction in the application of fault-based liability in a very important case,
concerning liability in the event of a vehicle collision in mutual relations between
possessors of colliding cars (Art. 436 § 2 Civ.C.). The declining signicance of
this basis for redressing damage will probably contribute to the increase in the
importance of civil liability on other grounds, e.g. under the regime of autonomous
car producers’ liability for a defective product, the liability of remote trac
management system operators, or the liability of organizers of test work concerning
autonomous vehicles. Moreover, appropriate adjustments to the provisions on
liability for defective products (Dir. 85/374) would be desirable, allowing a clearer
integration of software products and tangible goods equipped with software into this
regime of liability. Such changes would be important to increase the usefulness of
this regime in the context of the damage caused by autonomous vehicles.
Given that, in practice, damage caused by car trac accidents is redressed
through the payment of compensation by the car possessor’s insurance company
or by the Insurance Guaranty Fund (cf. section 10), possible changes to the scope
of parties that should make obligatory contributions to cover damages caused
by autonomous vehicles should be considered. More precisely, the fact that the
decision-making role of operators of such vehicles regarding the vehicle’s motion
decreases while the importance of failure of such vehicles as a possible cause of
damage increases, may justify the introduction of an obligation to obtain insurance
against liability for damage caused by autonomous vehicles also by parties other
than vehicle possessors, in particular by manufacturers of autonomous vehicles
and producers of software installed in such vehicles.
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