Liability Legislation – Self-Driving Vehicles In UK

UK Legal Regime – Better Developed Than Direct Competitors

UK is positioning itself as the “go to” location to develop, test, and drive automated vehicles, but questions are emerging as to how product liability laws can respond to the developing technology. The UK Government (“UKG”) hopes to see self driving vehicles on British roads as early as 2021 and has enacted legislation to provide an insurance model for these vehicles. Early in 2018 UKG commissioned a detailed and wide-ranging review of applicable regulations aimed to ensure legislation keeps pace with technological developments. We should expect a number of detailed legal developments in the next few years to reflect and facilitate innovation in the area of driverless cars. New legislation may serve as a model for other Western countries.

UKG has announced that it expects to see fully self-driving cars on British roads by 2021, and automated vehicles to form a key element of its “Future of Mobility Grand Challenge” commenced in July 2018 as part of the Government’s Industrial Strategy. Clearly, legislation must keep pace with technological change and foster innovation. Practical, real-world testing of self-driving vehicles on public roads is already possible. Plans are in place to allow testing without a safety driver. Legislative changes introduced in 2018 already allow drivers to use technology such as remote control parking on British roads.

The Automated and Electric Vehicles Act 2018—which introduces an insurance framework for these types of vehicles—received Royal Assent on 19 July 2018 but has not yet come into force. Under the Act, an insurer will have default liability for death, personal injury and property damage (other than damage to the automated vehicle itself or goods carried for hire) resulting from an accident caused by an automated vehicle when driving itself, with certain carve-outs. Tin the event of an accident, the Act envisages that the compensation route for an injured party would be through the insurer, and the onus would be on the insurer to recover from the responsible party (potentially including vehicle manufacturers) under existing common and product liability laws.

Product Liability in the UK

In March 2018, the Law Commission began a far-reaching review of the United Kingdom’s legal framework for driverless vehicles, looking at everything from road traffic legislation to product liability. As things stand, vehicle manufacturers and other industry participants have to consider potential liability for defective products under the Consumer Protection Act 1987 (“CPA”), as well as in the tort of negligence, in contract and for breach of statutory duty. Like its counterparts in France and Germany, the CPA is based on the Product Liability Directive 85/374/EEC (“Directive”). It remains to be seen whether, following its withdrawal from the EU, the UK will adopt a model keeping it in step with EU product law, including any future changes.

Currently, the CPA imposes a strict liability regime on manufacturers, importers and “own branders” to pay compensatory damages to persons who suffer personal injury or damage to non commercial property as a result of a defective product. The application of these principles to automated vehicles and the related technology give rise to complex issues which will need to be addressed. For example:

  • A product is defective where the safety of the product is not such as persons generally are entitled to expect.” One of the key anticipated benefits of this technology is a reduction in accidents (suggesting the safety of the average human driver might be too low a comparator), but it is not clear where on the spectrum (between human driver and the notional “infallible” driver) the standard will be set.
  • It is a defence to demonstrate that the state of scientific and technical knowledge at the time did not allow discovery of the defect. In an area of rapidly changing technology, the position of this defence will also need to be developing constantly; its application to software which includes self-learning algorithms will be of particular interest.
  • It is not clear how the law will deal with situations in which autonomous-vehicle software takes a deliberate action which inflicts a particular type of damage in order to avoid another (potentially more serious) incident, particularly when that choice occurs as a result of the vehicle operating correctly in accordance with its coding.
  • With consumer expectations high, but knowledge and understanding of these complex new technologies low, proper training and explicit and detailed warnings clearly brought to the attention of users will be of critical importance.

It is expected that the Law Commission will make specific recommendations to address these issues, but if not, we should expect them to be a source of future litigation!

Summary – 2018

  1. UK wants to serve as an example to other European countries of the use of legislation to promote the development and use of these technologies.
  2. Legislation has already been passed to provide for an insurance framework.
  3. Recommendations for legislative change in a number of areas are expected, aimed at ensuring the law in the UK does not impede the development (and widespread use) of this technology.
  4. It is not yet clear how the existing law dealing with liability for defective products will adapt to respond to the legal challenges posed by the new technology, or whether specific legislative changes will be required.

(c) Buy Research – October 2018..