Driverless cars: a question of safety and liability

Eddie Flanagan, Partner and Head of Asset Finance at Corclaim examines the issues faced by those who may well look to bring autonomous vehicles into their fleets as a drive toward allowing them on the world’s roads continues

We’ve come a long way since the American Wonder made its way through New York City in 1925. This vehicle was controlled by radio through an antenna on the tonneau, by a driver using a transmitting device from another car. Now, almost 100 years later, we’re buckling in for the rollout of the latest technology in autonomous transport… and the latest legislation surrounding it.

Driverless vehicles have been a topic of discussion for many years, most prominently so over the last five years since the Pathway to Driverless Cars legal review was published. The testing of these vehicles has been a turbulent journey, particularly in the US; a fatal crash occurred during a Tesla test in 2016, and two years later pedestrian Elaine Herzberg was killed by a test Uber car.

So, where are we now in terms of the legislation surrounding autonomous vehicles? In the event of an accident, does the liability sit with the driver? Or, does it sit with the manufacturer of the vehicle? Or expanding the circle of liability further, the telecommunications company in charge of providing the vehicle with signal?

In February 2019, the Code of Practice for Automated Vehicle Trialling was released. There has always been a three-round process of legal consultations for the eventual rollout of autonomous driving; the first in November 2018, the second in June 2019 and the third to be in 2021. Spokespeople from Tesla did announce that they will have enabled self-driving software in its vehicles by 2017, but this is still yet to happen.

So it seems a lot of legwork has been done, but actually the rollout is taking some time. But, since the beginning of 2020, the following regulations have been introduced:

Regulation 2019/2144 (applies from 2022 in the EU for automated vehicles)

Automated Lane Keeping System (ALKS – applies from 2021 in Japan)

But is there a clear, defined line between automated driving software, and driver assistance? The advances in this technology have sparked the question of whether a new role needs to exist in the dynamics of driving; a user. Not a person – software. In Tech Dispute Network’s podcast, Lucy McCormick, Commercial Barrister at Henderson Chambers, said: “all automated driving systems should be backed by an entity that can be backed by safety.”

In The Guardian’s article on Tuesday 18th August 2020, Transport Correspondent Gwyn Topham discussed the use of automated driving technology being made legal on UK motorways for up to 70mph in the slow lane. Topham commented: “A crucial question in the government consultation, launched on Tuesday, is whether the driver will be held legally responsible for the car or whether the car will be defined as an automated vehicle”.

It’s clear that even if the legislation proves uncertain, road users and fleet managers need to conduct their own risk assessments until the final legislation is announced, and driverless cars become the majority on our roads.

Anyone with experience of dealing with vehicle fires will understand the many strands that have to be considered before establishing liability. What will this mean for leasing companies which will now need to be mindful of both their obligations and risks to users and also tighten their purchasing contracts? Is now the time to revolutionise claims in regard to road accidents similar to that say of New Zealand?

The Electric Vehicle revolution is happening at a blistering place, we can expect the same with autonomy. The technology is there and governments will require this. We have seen platooning in Germany whereby trucks are used at night in convoy with only the lead truck being manned.

It seems to me that while there are many “rounds” of legislative consultations taking place on this subject, there needs to be a definitive answer to the question of who is liable in the event of a driverless vehicle accident. There has to be a bottom line, otherwise the litigation that will ensue may be lengthy and costly when it needn’t be. Ultimately, the safety of passengers and pedestrians is paramount, and this needs to be the top consideration when releasing the defining documents.

As with any new legislation and regulations, it can take some time for businesses to gain a true understanding of what it means for them. I’m referring to fleet and leasing companies, and the risks involved with their contracts and appendices that will need to be altered to include vehicle autonomy. As such, it’s important these companies seek the right legal advice where appropriate.