Who’s in the driver’s seat? Liability in automated vehicles

Getting your driving licence is a milestone moment for many people. You go through rigorous theory and practical tests, sometimes more than once, before you are given the privilege of being on the road. 

This, of course, is to ensure the safety of the driver, any passengers and other road users, writes Raina Victor of Birketts LLP. You are also aware of the consequences of driving going wrong, including that the liability for any accident falls (for the most part) on the driver.

But what about car accidents that are not caused by the driver of the vehicle but the vehicle itself? This is the world of automated vehicles. Automated vehicles, or ‘AVs’, are vehicles that require little to no human control and have the ability to respond to objects and events. 

There are five recognised levels of autonomy, ranging from level 1 (no automation) to level 5 (full automation). Many cars today already have features that allow a degree of automation, such as auto-park, anti-lock braking and adaptive cruise control.

With more than 90 per cent of car accidents being caused by human error, there is a rationale that shifting to AVs will significantly reduce the all-around risk and the number of road traffic accidents.

The Law Commission, who review and recommend changes to the laws in England and Wales, are currently undertaking a detailed review of what legal and regulatory changes are required to support the reality of AVs in the UK.
Currently, all drivers have a duty to take reasonable care to avoid injury to other road users or damage to property. Where this duty is breached and damage is caused, the victim may be able to claim compensation from the driver through the driver’s personal car insurance. 

The issue arises when an AV is involved in an accident – is it fair that the victim claims compensation under the current regime when the vehicle owner is not actually driving the vehicle?

Here, it will be possible to argue that the manufacturer should be liable, for example, if the accident was due to failures in the AV. In fact, many manufacturers, such as Mercedes Benz and Volvo, have already accepted liabilities in certain cases.

The Automated and Electric Vehicles Act 2018 (AEVA) extended compulsory vehicle insurance to cover AVs driving in automated mode. Therefore, insurers will have to deal with all civil liability claims, even when the vehicle is in automated mode. Where an AV is not covered by insurance, the liability falls on the vehicle owner.

Most importantly, this law allows an insurer to recover its costs from the liable party, such as the manufacturer. Though this may in theory lead to manufacturers increasing a vehicle’s purchase price to cover the cost of risk they are taking on, given that AVs are supposed to be safer than conventional vehicles and therefore the risk of accidents are significantly lower, manufacturers would only have to make a modest price increase to accommodate this risk.

Under the AEVA, insurers will also be able to exclude or limit their liability for damage where there is a failure to install safety-critical software updates or prohibited alterations are made to the software.

Despite the AEVA, there are still situations where it is vague as to who exactly is in the ‘driver’s seat’ and therefore liable. For example, AVs that are level 3 (conditional autonomy) on the autonomy scale assume control, in certain circumstances, of all safety-critical functions and nearly all aspects of driving. 

Although the driver is not required to monitor the situation, they must be on hand to intervene if necessary. Who is liable when the driver fails to or is unable to intervene and an accident occurs?

The Law Commission is exploring the idea of a ‘user-in-charge’ to tackle such situations. When the AV is driving itself, the person in the driver’s seat will be considered as a user-in-charge and not a driver. The user-in-charge would be able to do activities that drivers are forbidden from doing so, such as watching a film or using their phone. 

If an accident were to occur, the user-in-charge would not be criminally prosecuted. Instead, the liability would fall on the Automated Driving System Entity (ADS) who would be legally responsible for the AV. The ADSE could be the vehicle manufacturer, the software developer or a partnership between the two. This clearly demonstrates an intention to replace criminal offences with regulatory offences, holding the manufacturers accountable instead of the individual ‘driving’.

With the Law Commission set to release its full findings at the end of this year, it will be interesting to see its plans on how the current transport regime will be revolutionised. It may be that you may not even need a driving licence in the future!

• Call Raina Victor on 01223 643130 or email raina-victor [at] birketts.co.uk