A BIBA Brokers' Guide to New Technologies - The legal issues - 2015 Issue 2
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Published 21 June 2016
Driverless cars used to be confined to the realms of science fiction. However, they are fast becoming a reality, with trials taking place in various cities around the world. Such cars have many promised advantages. As 94% of road accidents in the UK are estimated to be caused by human error, the development of driverless cars has huge implications for road safety. The technology promises to reduce emissions, ease congestion, improve mobility and allow drivers the safe choice to do other things during a journey, such as surf the web or even take a nap!
Many modern vehicles already have features providing a degree of autonomy such as cruise control, intelligent parking, lane keeping assistance and advanced emergency braking systems. These show that the concept of allowing a computer active control of a vehicle's systems in the interests of safety isn’t new. All these examples still have the driver monitoring conditions and ready to assume full manual control if needed.
Truly driverless cars, capable of fully autonomous operation without a driver's involvement, are considered by many to be simply a natural progression from these existing technologies. Most indicators suggest some manifestation of driverless vehicles will be on UK roads by the early 2020s.
The UK has become a world leading centre in testing driverless vehicles, as it is considered to have a very favourable regulatory environment for the development of the technology. There is a UK Code of Practice for testing of driverless cars, published in 2015, which states that the test driver (and the testing organisation for whom they are acting), is expected to take responsibility for ensuring the safe operation of the vehicle at all times during testing, whether the vehicle is operating autonomously, or in manual mode. There are currently driverless car projects in place in various UK cities. Trials of driverless lorries in convoys are planned to take place later in 2016 and driverless cars will be tested on UK motorways from 2017.
A commonly asked question is how will product liability law deal with claims involving driverless cars once they hit the consumer market? It is anticipated that the legal position for liability in relation to features on highly automated vehicles will not be significantly different to those for the semi-autonomous elements which exist at present. It will still be necessary to consider whether a collision was caused by a design or manufacturing defect (such as programming and software malfunctions or the failure of integral components like sensors, radars or cameras), by human error if the vehicle was being manually operated at the time of the crash, or by other factors such as a failure to service or maintain the vehicle in accordance with the manufacturer's instructions.
In England and Wales, a Claimant is likely to bring an action directly against a car manufacturer or importer under the Consumer Protection Act 1987 which imposes strict liability for injury or damage where the vehicle is found to be defective. The Act defines a defective product as one where its safety is not such as people are generally entitled to expect.
Manufacturers will wish to ensure that consumers do not have unrealistic expectations as to the actual capabilities of the driverless car technology they have purchased. They will need to communicate very clearly how to use the automated features of the vehicles safely and to provide clear explanations of any potential risks. The instructions and warnings provided with such cars and the content of the owner's manual will be very important to questions of liability.
Another key area will be managing those situations in which a driver may need to take over and manually control the car. It may be that car buyers will need to be given specific training on safe use of their new vehicle, rather than just rely on written warnings and explanations. It is possible to imagine a scenario where an automated feature fails on a vehicle and a collision occurs. The manufacturer may claim that the driver should have taken back control of the car when it was possible and reasonable to do so, thereby avoiding the collision. The driver may, in turn, argue that he or she was relying on the automated driving mode to perform other tasks and therefore was not aware that an accident was imminent, or that it was simply impossible to respond in sufficient time to intervene. It has been suggested that black box type software may even need to be introduced for accident reconstruction purposes to help determine what the exact circumstances were in individual cases.
The UK Department of Transport prepared a report in 2015 called The Pathway to Driverless Cars that explored some of the liability questions surrounding this new technology. The initial view expressed in the report is that it would be reasonable for liability to only pass back to a driver if and when the driver willingly chooses to resume manual control. The report says it would not be considered appropriate for a vehicle manufacturer to design a system that attempted to switch back to manual control without the driver’s consent. If for some reason, the driver does not resume control, the report suggests that the vehicle’s automated system should be designed to ensure that it could safely bring the vehicle to a stop.
The UK Government has indicated that by Summer 2017 it will conduct a review of existing legislation and provide clarity on how liability should pass between the driver and the vehicle manufacturer according to the mode of operation. The Government is also considering if changes should be made to existing licensing requirements for users of highly and fully automated vehicles and whether the Highway Code should be updated to help guide road users on how they should interact with these vehicles.
A group of 13 UK motor insurers, led by the Association of British Insurers (ABI) and Thatcham Research, has been formed to consider key issues relating to driverless cars on UK roads, particularly concerning insurance and liability questions. The Automated Driving Insurer Group, as it is called, will feed into ABI policy and work with the UK Government on shaping the future of driverless cars in the UK.
In May 2016 the Queen announced in her Speech a Modern Transport Bill which aims to put the UK "at the forefront of technology for new forms of transport including autonomous and electric vehicles." The Bill has been described by the Department of Transport Minister, Andrew Jones, as "the world's first driverless car insurance legislation." In a speech he delivered on 26 May 2016, Mr Jones explained that compulsory motor insurance will be extended to cover product liability for accidents where the motorist has handed over control of the vehicle and it is operating in autonomous mode. He stated that "where the vehicle is at fault, then the insurer will be able to seek reimbursement from the manufacturer." For affected individuals, the insurance process will feel much the same as it does at present.
Since the Queen's Speech, one insurance provider in the UK has launched what it claims to be the UK's - and maybe the world's - first personal driverless car insurance policy, designed for consumers who purchase cars with some automated features, such as self parking. The policy includes coverage for loss or damage caused by a failure in the manual override or if the vehicle's computer is hacked.
In conclusion, whilst there are still many questions surrounding driverless cars that require exploration, not only in the areas of insurance and liability but also regarding data privacy and cyber security, it is clear that this technology is set to alter the face of motoring in the UK in the not too distant future.