Test drive

Driverless or autonomous vehicles are no longer the stuff of science fiction. Google has been testing driverless cars for several years in the US and the UK will allow driverless cars on public roads from January 2015.

Many modern vehicles already have features providing a degree of autonomy, such as cruise control, automatic braking, anti-lane drift and self-parking functions. Soon, manufacturers will be offering vehicles that take charge of steering, accelerating, indicating, and braking during most, if not all of the journey between two points.

Although driverless cars may be with us within months, there remain difficult issues concerning their regulation and the apportionment of liability in the event of collisions and resultant claims.

Eventually, all road vehicles may be autonomous with no human involvement. Then a legal framework to regulate vehicle use and resolve claims resulting from any accidents may not provide legislators with too many headaches. However, more difficult issues loom in the short term, with both driverless and conventionally driven vehicles on the road.

Defining ‘drive’

From a legal perspective, the current test of whether a person is driving a vehicle is whether he or she is in a substantial sense controlling the movement and direction of the vehicle; R v McDonagh 1974. However, the activity must also fall within the ordinary meaning of the word ‘drive’.

With a fully autonomous vehicle, and leaving aside an ability to take manual control, it is difficult to argue any persons being carried in the vehicle could be described as driving. Who or what could be said to be controlling the vehicle?

Could the owner and/or operator of the software controlling the vehicle be blamed for any collision, or would the vehicle manufacturer be held responsible? Could the vehicle owner be deemed responsible, even if not controlling the car’s movement? If a passenger is performing some function within an automated car, how is blame apportioned between a human driver and a car’s automated system? How could you apportion blame within a vehicle’s automated systems? Was it a software issue, a hardware issue or a problem with the way they interact?

If the testing conducted by Google can be relied on, the chances of autonomous vehicles colliding with each other are very low; accident rates should fall dramatically. Vehicles should always travel at a safe speed appropriate to the conditions and a safe distance from other vehicles. By removing the
human element, you remove momentary lapses of concentration, dangerous driving, speeding and driving under the influence of alcohol or drugs.

There remains the possibility of collisions with conventionally driven vehicles. Where would liability lie? Claims against operators and manufacturers of autonomous vehicles would fail to be dealt with by product liability insurers. Would the human driver be presumed to be at fault? A driver’s motor insurers would, in all probability, face such arguments from product liability insurers of software and hardware manufacturers unless failures in a vehicle’s automated systems could be established.

No-fault schemes

As conventionally driven vehicles disappear, the most straightforward and cost-effective way of dealing
with accident claims might be through a no-fault compensation scheme with operators and manufacturers paying into a fund to settle claims. Without such a scheme, there may be difficult and costly arguments between product liability insurers. There remains the possibility of pedestrians being hit by autonomous vehicles. The chances should be much reduced with vehicles travelling at lower speeds and with improved safety features. Liability insurers for operators and manufacturers would doubtless argue that without evidence of malfunction, no blame could attach to the vehicle.

Many current criminal motor offences have little or no application to driverless cars. Unless a passenger retains some form of control of the vehicle, offences such as careless or dangerous driving, speeding
or drink driving will not apply. Offences concerning the use and maintenance of vehicles as currently contained within the Road Traffic (Construction and Use Regulations) may still be relevant.

Insurers may face an uncomfortable future. Is there a future for motor insurance in a world of automated vehicles with relatively few accidents and claims dealt with by a no fault manufacturer/operator-funded compensation scheme?

Once driverless cars are introduced, courts will face the challenge of determining liability between human drivers and automated systems controlling driverless vehicles. What is clear is that once driverless cars are introduced there will be no turning back. SJ

Peter James is a partner and head of the motor offences team at Plexus Law

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