Worldwide: Navigating The Moral Maze Of Driverless Vehicles: Safety, Risks And Regulation

Last Updated: May 5 2017
Article by Daniel Cole, André Rivest and Stuart Young

Most Read Contributor in Canada, October 2018

Driverless vehicles continue to raise difficult legal and moral questions around safety. What are the regulatory implications for this fast-paced industry?

Autonomous vehicles (AV) that require no input from human occupants are currently being tested on public roads. Experimental prototypes, still closely supervised by people, are already mixing with ordinary traffic in parts of the US, Canada, UK, Sweden, Germany and Japan.

Technology giant Google alone has clocked up more than 2.2 million miles of autonomous testing1 since it began developing its technology in 2009. It has now launched a new company, Waymo, to commercialise the technology. Other participants - including manufacturers like Volvo, parts suppliers such as Bosch and service providers like Uber - are pursuing their own ambitious development projects.

The arrival of autonomous vehicles as either purchasable products or hireable services now seems inevitable. However, in addition to the obvious technological challenges, driverless vehicles also raise a host of legal and moral questions. Our roads, our laws and our expectations have all been shaped by more than a century of vehicles controlled by human beings, with all their foibles and failings. Adding robotic cars, buses and trucks to the mix is not going to be trivial.

"There are certain areas of the law that are well equipped to deal with new technology, such as the patent system," notes Daniel Cole, an intellectual property partner at Gowling WLG. "But the archaic language of traffic laws that talk about a vehicle being under a person's control - that's all going to have to be completely revamped. And if you've ever watched anything move through a legislature, you'll know that's not happening in a month. That's years and years of work."

Setting the legal framework

Legal questions run from relatively minor issues, such as who pays for speeding fines, to deep moral questions about putting one life ahead of another in an accident.

One potentially tricky area is how to deal with rules that sometimes need to be broken. "Imagine an AV sitting at a red traffic light while an ambulance is trying to get through, refusing to move because it's been told it can't run through a red light. Meanwhile a patient is dying," says Cole. "There has to be a way to say it's OK to have that technical violation in these circumstances. But that's tricky because there are endless possibilities."

Liability when things go wrong is another area that is expected to create challenges. "There's going to be a shift in liability from the driver to the manufacturer or the people who market these products," observes André Rivest, Gowling WLG partner and head of its automotive group in Canada. Especially in the early days of adoption, when AVs and human drivers interact, it may be difficult to establish exactly who is liable for what, he cautions.

Putting members of the public in driverless vehicles will also require crossing a Rubicon that manufacturers - and their lawyers and insurers - may find unnerving. "If you look at today's features, like lane departure warning, they all come with disclaimers warning that they don't replace the driver's responsibility," notes Cole. "At some point we're going to flip that on its head and say that manufacturers are in control of the car. That's a huge mind-shift."

Rivest agrees. "The transition from lower level autonomy to full autonomy is where it's really delicate, and that's what we are beginning to address," he notes. "How should an AV react if a small child runs out after a ball and the car can't stop in time, but if it veers to the side it will run down an elderly couple? Who will make these decisions?"

Redefining risk

People are fallible and human error accounts for an estimated 94% of crashes, according to figures published in the US. To limit the danger, we expect drivers to exercise good judgement and behave as responsibly as possible. Highway patrols, traffic cameras, fines and the threat of imprisonment back up that requirement, but we also acknowledge that human skill is variable. We simply live with the risk that some drivers will make fatal mistakes behind the wheel.

Yet we tend to be less willing to accept risks, even of a much lesser scale, when they are posed by machines. We expect dangers in equipment to be spotted and removed, preferably before anyone is hurt.

Similarly, the knowledge that computerised systems can react more quickly than human drivers in an emergency has led to hopes that AVs might dramatically reduce the overall frequency of accidents. But this potential has also fuelled speculation that driverless vehicles will need to include a "moral algorithm" to determine how they should react when human life is at stake. After all, an AV may need to decide whether to protect occupants at the expense of bystanders, for example.

"When cars crash today, people act instinctively - they don't make conscious decisions," points out Stuart Young, head of automotive at Gowling WLG in the UK. "But when you program a car, you are sitting at a computer writing the code, and you have every opportunity to make a calculated decision about what the car should do in given circumstances. I think there will be a moral judgement on someone who's been able to contemplate and come to a conclusion."

'Intelligent' software systems

However, the situation may not be so clear cut. It is likely that autonomous vehicles will rely on complex software techniques, such as neural networks or genetic algorithms, which can acquire expertise without human reasoning. For example, a software system might "learn" the capability to recognise a cyclist by being provided with many thousands of example images, rather than any formal definition composed by a programmer. Internally, the software will build up a complex mathematical model allowing it to successfully recognise new images of cyclists. However, there will be no step-by-step reasoning in the software that can be unravelled and understood.

Similar machine learning techniques are likely to be employed extensively within AV development, ultimately dictating how the vehicle will react to unfolding circumstances. A software model will be built up over millions of miles of testing, helping the AV to interpret any consciously coded set of rules.

What results is a mire of moral questions that include not just which decisions ought to be made but how they might be reached. Some types of programming might be subject to debate.

"Regulation needs to get on top of this," says Young. "It needs to get ahead of it. Because at the moment there's nothing giving a clear steer as to who's going to take responsibility for what, or whether all decisions are going to be left to manufacturers."

That path, as Cole notes, means waiting for things to go wrong to establish legal precedents that might provide a measure of clarity.

International regulation models

Gowling WLG is calling for an alternative approach that recognises the need for affirmative action by governments around the world. Pre-emptive regulation of autonomous vehicles need not hold back their development, argues Young. Instead, clarity over expectations and responsibilities would likely resolve some hard-to-quantify business risks that might otherwise stand as stumbling blocks.

"What we've been looking at is asking government to set up an independent agency to regulate the technology," says Young. "In the UK, we have the HFEA (Human Fertilisation and Embryology Authority), which may seem like an odd analogy, but it has been successful. There's a lot of ethics involved in embryology and development, but it was set up as an independent government agency with the right representation. It's broadly seen as having done a very good job of allowing development whilst tracking and reflecting ethical concerns in society. And that's what we need for the moral aspects of the algorithms that are going to be developed."

It is also vital to recognise that the vehicle industry is a global one, where international agreements make more sense than local regulations. Given that vehicles can drive across national borders, useful models for regulation may also be found in the air transport industry, where international pacts govern corporate behaviour and limit liability for carriers.

Vehicles are already more heavily regulated than other consumer products, with type approval to ensure compliance with national and international regulations, and compulsory safety recalls to correct serious errors, so any move to regulate the programming of AVs would not be without precedent.

Today, most countries with a significant automotive manufacturing base have started to grapple with the issues raised by AVs, with varying levels of ambition. In the UK, for example, the Department for Transport recently carried out a consultation2 to examine what changes might be needed to insurance, type approval regulations and the national Highway Code.

"The most comprehensive exercise I've seen is in the US," says Young. "The National Highway Traffic Safety Administration (NHTSA) has done a pretty thorough job with the Federal Automated Vehicles Policy3, issued in September. It's a root and branch review of what needs to be done to create the right legal framework in the US (including a model state-by-state code), what should be retained at a federal level, and what needs to be set down in terms of vehicle safety. Of course, there have been critics of the policy, particularly around the data sharing aspects, and with the new Trump administration there is some doubt over whether it will get any further Federal support."

As technology advances, society is likely to recognise that AVs - even those without a verifiable moral algorithm - can save lives simply by reacting more swiftly, more decisively and more accurately to sudden unforeseen danger. The question that then arises is: how much safer than human drivers do AVs need to become before we are morally obliged to adopt them?





The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions