LEGAL.FYI: Autonomous Cars – Knight Rider Becomes Reality

Autonomous Vehicles

With driverless cars set to arrive on UK roads by 2021 lawmakers need to overhaul current road law to ensure new era is properly regulated.

Roddy Cairns

It is neither a revelation nor an exaggeration to say that life in 2018 is increasingly resembling what older generations would have considered to be “science fiction”. Companion robots, virtual reality visors and even hoverboards have made the transition from writers’ imaginations to shop shelves. However, it is the latest slice of real life sci-fi that has lawmakers concerned, self-driving autonomous cars – as famously depicted in the David Hasselhoff TV series Knight Rider – becomes reality.

With major tech and automotive names such as Tesla, Uber and Google making big strides in their piloting of automated vehicles, and Chancellor Phillip Hammond having pledged to ensure genuine driverless cars on British roads by 2021, the Government has taken steps to ensure that this brave new dawn is properly regulated.

Earlier this month, the Centre for Connected and Autonomous Vehicles tasked the Law Commission of England and Wales and the Scottish Law Commission with undertaking a “far-reaching review of the UK’s legal framework for automated vehicles”. Automated vehicles do not easily fit within the legal frameworks that have developed around driving, which focus on the responsibilities of the human driver. The three year project will include an audit of the current law on road based automated vehicles and a scoping exercise to identify key issues. A paper is due to be released for consultation before the year is out.

The Automated and Electric Vehicles Bill

In the shorter term, there is already legislation making its way through the Westminster Parliament which aims to resolve some of the most pressing issues raised by the impending use of automated vehicles.

The Automated and Electric Vehicles Bill, which was published in October 2017, is currently at the Committee stage in the House of Lords, and is expected to pass into law later this year. One of the key areas that the bill seeks to deal with is insurance law, and how it must be extended and clarified to adequately cover how automated vehicles that are involved in accidents will be treated for insurance purposes.

The Single Insurer Model

At the moment, insurance law is very much driver-centric. But how do we square the circle when the human is nothing more than a passenger, and the car is being driven by “itself”? Should insurance reside with the driver at all in that situation, or should it be product liability insurance? Given the capacity for cars to switch between driving autonomously and being driven by a human, there is potential for a great deal of debate on who is liable at the time of an accident.

The Government’s solution is to create a “single insurer model”. This is really an extension of insurance law as it currently stands, and means the “victim” of an accident will have a direct right to make a claim against the motor insurer, irrespective of whether the issue relates to the driver’s use of the vehicle or the automation technology, and they in turn will have the right to recover against a party who is liable for the accident under existing laws.

Manufacturer Core Liability Remains the Same

From a product liability perspective, the single insurer model takes us further from the prospect of individual consumer-manufacturer actions, which are generally longer and more costly than insurance claims (and therefore seen as prejudicial to an individual claimant). In instances where it is found that the accident was caused by a failing in the vehicle’s automated driving systems, the car insurer will pay out in the first instance and will then have a right of claim against the manufacturer under product liability laws (including any manufacturer of any defective component along the supply chain where this has contributed to the incident).

The core liability of manufacturers, then, does not change: if they produce a product that is defective, and causes damage, they are strictly liable for that damage. Under the provisions of the Bill, however, this liability manifests itself as a duty to repay the insurer, rather than a direct claim from the injured party.

More generally, the advent of automated cars could make insurance claims fairer and simpler to decide: an insurance industry spokesman told the Commons Public Bill Committee that the data collected by autonomous cars involved in accidents could be far more reliable than the witness statements, opinions and evidential measures (such as measuring skid marks) which currently form the basis of claims.

Liability of the “Driver”

There are some safeguards in place, however, which protect insurers (and, by extension, can protect manufacturers). Where the injured party (whether the “driver” of the automated vehicle or another person) is partly at fault, the normal rules of contributory negligence apply. A novel aspect arises in the case of the human user of the automated vehicle: in what ways might they be contributorily negligent in a crash where they have disengaged from the driving process and are trusting their car to do the driving?

According to the present wording of the Bill, negligence could be attributed to a driver for taking the decision to allow a vehicle to drive itself when it is inappropriate to do so. Another circumstance which could see insurers and manufacturers limit their liability is where the insured person either tampers with the operating system of the car, or fails to install a “safety-critical” update to the system. In such cases, the insurer could potentially reclaim some or all of their pay-outs from the insured.

Proposed Time Limits for Claims

The Bill sets clear time limits for claims. An injured person has three years to bring a claim against the relevant insurer. An insurer, on the other hand, has two years from the date their liability to the injured party is settled to bring a claim against the person liable to the injured party (such as a product liability claim against the manufacturer).  This is a significant shortening of the existing period within which a product liability claim can be made, and according to the Government will take precedence.

Other Issues

The Government has been at pains to stress that the Bill will not resolve all of the potential issues that automation of cars could cause. The most obvious of these is the question of liability for motoring infractions, such as where the software causes a car to run a red light, exceed the speed limit or enter a bus lane.

Responding to concern during the passage of the Bill through the House of Commons, then Minister of State for Transport John Hayes stated that “the process of determining and apportioning liability in the event of an incident will remain the same as it is now, with the court ultimately making judgments based on the facts”.

Not everyone is convinced, however, with Labour peer Lord Campbell-Savours stating (in a scathing speech in the House of Lords) that the “whole approach to vehicle liability will turn into a legal nightmare in the end.”

Back to the future

While the lawyers and politicians consider the minutiae of the legal framework, back in the real world the development of driverless cars continues at a breakneck pace. The GATEway project in Greenwich is a prime example of this: a research trial, currently entering its final phase, which sees members of the public invited to ride in driverless shuttle “pods” around the Greenwich peninsula.

Automated vehicles are fast becoming a reality, and the danger is that the emerging legal framework, which evidently has major liability issues to resolve before it can claim to be fit for purpose, holds back innovation. These debates won’t stop with the self driving car: with industries as diverse as parcel delivery and bricklaying joining the increasing trend towards automation, our lawmakers will have to get to grips with these issues – and fast.

 



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