ABSTRACT
Few, if any, developments have had a greater impact on the common law, and in particular tort law, than the advent of the motor vehicle. It is a notorious fact that tort law underwent seismic shifts over the course of the twentieth century in response to cars substantially replacing earlier modes of transportation. The most obvious and perhaps significant example concerns the breach element of the tort of negligence. Under the influence of legislation requiring owners of vehicles to secure third-party insurance, courts across the common law world, while notionally requiring drivers only to act reasonably, raised the standard of care that drivers must achieve for the purposes of the tort of negligence to a level where, paradoxically, it comes close to imposing liability regardless of fault. I do not only have in mind in this regard decisions such as Nettleship v Weston in which the Court of Appeal of England and Wales held that a learner driver must achieve the standard of the reasonable competent motorist despite the obvious impossibility of their doing so. Rather, I am principally talking about what Patrick Atiyah evocatively described as the process of ‘stretching’ the law. Atiyah was referring by this term to, in particular, the tendency of judges to demand that motorists exercise far more care than most drivers in practice take. He attributed this proclivity to, among other things, sympathy for injured claimants as well as an awareness that damages awarded in claims brought in respect of motor vehicle accidents are paid by insurers rather than by defendant motorists …
Goudkamp, James, Automated Vehicle Liability and AI (July 14, 2023) in Ernest Lim and Phillip Morgan (eds), The Cambridge Handbook of Private Law and Artificial Intelligence (CUP), Forthcoming.
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