Following the UK government's announcement in April 2021 that self-driving vehicles would be permitted on British roads, there has been a vast increase in the number of companies that have developed or are developing automated vehicles. As a result, pressure has been building on the government to adopt a legal framework that will govern the use of automated vehicles. One of the issues that is central to the passing of any such regulations is who will be ultimately liable when a self-driving car suffers a collision. This matter is made more complex by the fact that there are different degrees of automation, ranging from the adoption of driver assisted technologies, such as park-assist and cruise control, to cars that are fully autonomous without any manual driving controls (brakes and a steering wheel).
In January 2022, the Law Commission of England and Wales and the Scottish Law Commission published a joint report providing recommendations for the safe usage of driverless cars. The report recommended the introduction of a new Automated Vehicles Act ("Act") that would regulate vehicles with automated driving systems (ADS). The Act should offer a new accountability model for vehicles that use ADS features. This model would draw a distinction between cars that are equipped with self-driving features that have the capacity for a user to take driving control (user-in-charge vehicles) and cars that do not allow a driver to take control (no user-in-charge or NUIC vehicles).
Under this new accountability model, if a car has self-driving features with the capacity for a user to take driving controls, where those self-driving features have been engaged, the Law Commission considers the person in the driving seat to be a user-in-charge. A user-in-charge should not be held liable for any criminal offences or civil penalties which arise from dynamic driving, which may range from dangerous driving to exceeding the speed limit or running a red light. In this instance, the Authorised Self-Driving Entity (ASDE) may be ultimately held liable for such offences. The ASDE is the entity that has applied for authorisation of the automated vehicle. This can be the manufacturer of the automated vehicle or the software developer of the ADS (or a joint venture between the two).
On the other hand, the user-in-charge should be held liable for those responsibilities that do not relate to the dynamic driving of the vehicle, such as ensuring the vehicle has the required insurance in place or that any children in the vehicle are wearing their seatbelts. Furthermore, where the vehicle has the capacity for the user-in-charge to take over the driving controls, the user-in-charge must always be prepared to do so and will be responsible for driving offences where the automatic driving system has issued a transition demand and the driver has failed to take control of the vehicle and a motoring offence has occurred.
Where the vehicle does not have the capacity for its users to take over driving controls (i.e. a NUIC vehicle), the users of the vehicle should be regarded as passengers. The Law Commission recommends that where a vehicle has NUIC features enabled, the vehicle should be overseen by what the Law Commission classifies to be an NUIC operator. The NUIC operator is the organisation that will have oversight of the vehicle and will be responsible for dealing with incidents. Whilst the NUIC operator will not be driving the vehicle remotely, it should be monitoring for any alerts received from the vehicle in instances where the vehicle encounters a problem or becomes involved in a collision. Where the NUIC vehicle commits any motoring offences, the liability may rest with the NUIC operator.
The Law Commission puts forward other recommendations in its report, including but not limited to the following:
- Establishment of an in-use regulator with statutory duties and powers to maintain in-use safety of automated vehicles, including the power to impose civil penalties and compliance orders.
- Setting requirements that need to be met before an applicant can become an ASDE or a NUIC operator, including those that relate to its reputation and/or financial standing.
- Setting out responsibilities that fall on the NUIC operator and/or ASDE.
- Establishing conditions that vehicles need to meet before obtaining authorisation for having self-driving ADS features.
- Introduction of new offences for ASDE and NUIC operators, including those that can be brought against ASDE and NUIC operators where they fail to provide pertinent information to the regulator or provide information to the regulator that is false or misleading.
- Introduction of new offences for a user-in-charge who operates a vehicle without a license, in a dangerous state or under the influence of drugs or alcohol.
- Amendment of the Automated and Electric Vehicles Act 2018 so that vehicles with self-driving features fall under the scope of its provisions concerning civil liability.
- Reviewing product liability laws to address new emerging technologies, including those that relate to automated vehicles.
- Establishment of an independent collision investigation unit which will be in charge of investigating collisions that involve automated vehicles that are serious and complex.
The UK government is going to consider the recommendations set out in the report and determine whether the legal framework proposed by the Law Commission to govern automated vehicles should be adopted. Due to the rapid development of automated driving systems, we anticipate that the UK government will propose regulations in the near future to address the challenges presented by the future adoption of autonomous vehicles.
Originally published 28 March 2022
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