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Driverless cars: the legal issues

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The UK Government is committed to becoming a world leader in the development of automated vehicles. However, the lack of a legal framework which is able to sufficiently address issues associated with the use of this technology continues to be both a cause of concern and interest. Here’s a brief heads up as to some of the potentially problematic issues.

Driverless cars rely on complex algorithms to predict the movements of traffic, pedestrians and other inanimate objects and react accordingly. They are regarded as a major step forward in improving road safety. However, companies such as Google, Tesla, Uber and Volvo have admitted that there will inevitably be accidents along the path to driverless cars becoming commonplace on our roads.

Take for example, the first recorded fatal accident, which occurred in Florida last year. The self-driving car attempted to avoid collision by driving full speed under the middle of a lorry, before crashing into a post and killing the “driver”, who was allegedly watching a Harry Potter movie at the time. Tesla avoided liability for this incident and responsibility for the accident was placed primarily on the driver, who should have noted the hazard and retaken control. This outcome is seen as unsatisfactory by many, since surely the point of marketing cars as “Autopilot” is that users are expected to believe the car is capable of self-driving and autonomous decision making.

In the UK, consumer expectations of a product are relevant to the issue of product liability. As cars become more autonomous, the fault for accidents will arguably shift from the driver / user to the manufacturer. Claims are likely to be brought under the Consumer Protection Act 1987 (“CPA”), which imposes strict liability for injury or damage where a vehicle is found to be defective. The CPA defines a defective product as one where safety is not at the level such as people are generally entitled to expect. This is known as the consumer expectation test and removes the need to prove the manufacturer’s negligence, being based instead on the consumer’s expectations. In the realm of Artificial Intelligence, the average consumer will often have little product familiarity, and therefore it is critical for manufacturers who wish to minimise product liability claims to ensure that products are marketed responsibly. Arguably, as autonomous car technology becomes more familiar to consumers, the liability risks to manufacturers will reduce since it will be easier to comply with the consumer expectation test.

Insurance is another key issue in the development of a regulatory framework that protects users of automated vehicles. The Government aims to develop a model whereby it is easy for drivers to claim and difficult for companies to avoid liability. Under the Road Traffic Act 1988 (“RTA”), the “user” of a car is generally liable for the car’s actions. Clearly the RTA would need to be updated in line with the parameters of driverless vehicles. To this effect, the Vehicle Technology and Aviation Bill passed its second reading in the House of Commons in March 2017. The Bill sets out sensible proposals as to how to address issues of liability. This includes amendment to the RTA to establish a single insurer model to include use of automated vehicles, where the user will have a direct claim against the motor insurer who then recovers the cost of damages payments from the vehicle manufacturer. Notably, only automated vehicles, considered capable of self-driving and recorded on a list of automated vehicles kept by the UK Government would be subject to these new insurance and liability provisions.

Under the Bill, insurers would still be free to limit or exclude liability in cases where the user contributed to the accident, which in turn brings us back to the question of what it is and isn’t realistically expected of someone driving an autonomous vehicle and perhaps the way in which the vehicle is marketed. For example, in a truly autonomous vehicle, will it be acceptable for a user to be drunk? Does the fact that a car has a steering wheel mean that a user is expected to retake control? These are questions which perhaps will only be answered through real life scenarios, rather than theoretically.

A final issue to consider is how the law surrounding data protection and sharing will develop. Clearly a data sharing framework will be important to underpin the proposed changes to motor insurance, as data will be required to determine who was in control of the vehicle at the time of the incident. However, as data generated will likely constitute personal data for the purposes of the Data Protection legislation and access to it would be necessary to address key liability issues in all driverless vehicles, it is likely that further regulation will be needed. If autonomous vehicles are to work at their most effective in a fully functioning ‘internet of things’ world, then data will need to be shared more easily and protected more diligently. Cyber security and safety will be a key issue. The UK’s newly formed joint policy unit, the Centre for Connected and Autonomous Vehicles, which will co-ordinate government policy on driverless cars and connected technology should provide some clarity to these questions.

Whilst driverless cars are likely to be visible on our roads sooner rather than later, the legislative framework needs significant development before we can consider fast tracking to a driverless society.

This article was written by Paul Herbert, Partner, Corporate, with assistance from Georgie Sharpley, Trainee Solicitor.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice.  If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.