Cruising the liability highway

As the arrival of driverless vehicles inexorably approaches, the pressing question for legislators, business interests and consumers remains: if there is an accident, who will be liable?

The chief executive of Volvo Cars last week declared that Volvo will accept full legal liability for an accident if one of its cars is in autonomous mode at the time of the incident. However, Volvo subsequently told the BBC that it would first require there was a flaw in their technology to accept liability.

Assuming any third party involved is 100% innocent, currently it is generally accepted that liability for an accident will rest with the driver, the vehicle manufacturer or the supplier of a software or hardware component. Then, as now, a common law duty of care or a statutory liability will apply according to the established cause of the accident – human error or product failure.

It is unlikely, in the medium term, that any driverless vehicle involved in an accident will be truly autonomous, i.e. requiring no driver. It will be a temporary state and the “driverless” vehicle will actually be using one of a number of Advanced Driver Assistance Systems (ADAS) such as adaptive cruise control, lane departure warning, automated emergency braking or parking assist, or it will be following a pre-determined set of algorithms within a confined area, such as an urban transport route or a logistics depot, which may legally require the presence of a driver or an operator.

The principles of negligence are unchanged by technological developments, it will be the application of those principles to the facts that will count and to establish the facts data recording/telemetry will supply much more detail about individual vehicle behaviour than currently available.

Thus the person having control of a driverless vehicle will still owe a duty of care to another person where he or she can reasonably foresee that their conduct as a driver, or the behaviour of their vehicle while in “driverless” mode, or lack of attention while transferring between modes will expose the other to a risk of physical injury.

This will include not only manual driving activity but also the correct use of ADAS, remaining sufficiently alert to take control back from ADAS when required, and conceivably intervening to prevent ADAS causing an accident if it becomes clear the ADAS has malfunctioned. Similarly, an operator responsible for implementing a pre-set programme for an automated shuttle bus or a warehouse fork lift truck, for example, will still have the basic duty of care towards others around them who might be at risk from his actions or for reasons other than a sudden failure of technology.

The fact that a vehicle can drive itself in certain circumstances will not divert the law from the real question of responsibility: what kind of harm was it that the defendant had a duty of care to guard against and could/should the defendant reasonably have prevented that harm occurring?

ADAS are already widely in use and Volvo’s recent statement (intended to no doubt reassure all interested parties), is already a reality for all motor manufacturers and their suppliers under UK law. Unless there is significant legislative change that creates a different playing field altogether in this area, the loss of reputation if a technical flaw were found (see VW) makes it likely Volvo or any other vehicle manufacturer would try to defend itself from statutory liability and instead try to prove negligence by the driver.


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Written by Nick Rogers, partner and head of the BLM motor group

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