This article was first published on Lexis®PSL Commercial on 19 February 2015.

Local Government analysis: The Department for Transport (DfT) recently published a review identifying issues that need to be addressed to enable automated vehicle technology testing on UK roads. Stuart Young, partner and head of the automotive group at Wragge Lawrence Graham & Co, considers legal questions arround the introduction of driverless cars.

Original news

Green light for driverless car testing, LNB News 11/02/2015 82

The driverless car industry has been given the green light by the DfT to test vehicles on public roads in the UK. A review published by the government identified issues to be addressed to allow the testing of automated vehicle technology while maintaining road safety. The paper also looked ahead to cover the implications of using fully autonomous vehicles.

What are driverless cars and what are the different levels of autonomy?

Many cars already have levels of automation (adaptive cruise control and lane keeping technologies for example) but all vehicles currently operate with the driver 'in the loop'. That means the driver monitors conditions and is ready to assume full manual control. The next levels of automation will increase the levels of autonomy and allow the driver to come 'out of the loop'. The DfT refers to two levels of automated vehicles:

  • high automation-at this level 'a driver is required to be present and may need to take manual control for some parts of the journey'
  • full automation-at this level a driver is not necessary in the vehicle (the level that, in popular imagination, requires no steering wheel)

What are the risks and downsides associated with driverless cars?

There are some genuine and well-stated concerns in relation to driverless cars. They include some behavioural concerns, for example that driverless cars may encourage poor driving. Other drivers may attempt to test the collision avoidance capabilities of driverless cars by erratic steering or braking. They may also mimic the close formations (or platoons) of driverless cars and assume that tailgating is acceptable normal behaviour.

There are also concerns over the potential for confusing the lines of responsibility and liability for accidents. Other concerns relate to cyber-security and the worry that driverless vehicles could be "hacked" and controlled malevolently.

To what extent does the level of automation affect legal liability for accidents?

Although human error is a factor in over 90% of collisions, there are other factors as well including product defects, infrastructure defects and the state of the vehicle due to servicing and maintenance (or a lack of it). The courts will need to decide, based on existing principles of negligence, who is responsible for accidents.

In truly driverless vehicles that are being operated autonomously it will be somebody other than a driver. If that becomes too difficult then the UK may need to adopt a new way of dealing with society's collective risk in the transport infrastructure, for example with strict liability and a revised approach to insurance.

Can driverless cars use the public roads in the UK? If not, why not?

Not yet, no. However, and as part of the move towards driverless cars, the Government has launched a driverless cars competition in the UK and has issued a detailed review of regulations for automated vehicle technologies. It states that "driverless vehicles can legally be tested on public roads in the UK" (emphasis added). The legal basis for this appears to be that the testing regime will require

  • highly qualified test drivers being able to take control at all times
  • vehicle compatibility with road traffic law, and
  • public liability insurance.

Who is involved in driverless vehicle testing and where is it happening?

Three consortium groups have secured Government funding for testing driverless vehicles. The testing will take place in Greenwich (TRL consortium), Bristol (Venturer consortium) and in Milton Keytnes and Coventry (UK Autodrive). The author's firm is a member of the UK Autodrive consortium along with Jaguar Land Rover, Tata, Ford, MIRA, RDM and Arup.

How will international laws harmonise to deal with driverless cars?

Most countries refer to the Vienna Convention on Road Traffic as the root source of law relating to moving vehicles. It requires that "every moving vehicle……..shall have a driver". The Convention is in the process of being amended but it's clear that many countries will need to amend their law to allow driverless cars. The UK, being a signatory to the Convention but not having ratified it, does not need a change in law to allow testing of driverless vehicles but will likely need a change of law to allow public use.

Is the Highway Code going to change?

Not during the current testing phase for driverless vehicles (in relation to which a separate code of conduct will be issued by Government). However Government has acknowledged that the Highway Code may need to be updated as driverless cars become available to the public to use on public roads.

How will data protection and privacy laws affect driverless cars?

Driverless cars will create a lot of data and the current data protection laws will apply to data where an individual can be identified. This is a live issue for the automotive industry as, notwithstanding driverless capability, cars become ever more connected. Manufacturers, distributors, operators and owners of connected vehicles will need to ensure that they're aware of their data protection obligations and remain compliant.

If driverless cars become a reality, will consent to using the automated vehicles become a complex network of Ts & Cs and shifting liabilities?

It's either going to be very complicated or very simple. If the use of driverless cars is governed by the existing matrix of legislation, negligence laws and contract then, potentially, a complex and rapidly shifting legal position will emerge. However, the alternative would be a simpler strict liability situation in which the overall risk in driverless cars is a shared risk and priced into the cost of using the new infrastructure. Perhaps charged to passengers on a distance basis? The underwriting environment will be ripe for a complete review.

Could you theorise on the potential situation where an automated vehicle is involved in an accident with a manned vehicle. How would this work? What issues might arise?

The mixed use world is probably the most difficult to legislate for. The laws that apply to driven and driverless cars must produce a consistent result. One of the benefits of increased technology is the likely compulsory introduction of Event Data Recorders (roughly speaking, black boxes). By recording in much greater detail the circumstances of any collision it should be possible to assign responsibility and, in turn, legal liability.

One interesting ethical question, which is beyond the answers that can be given here, is how will driverless cars be equipped to make decisions requiring a balancing of unwanted outcomes? How will the algorithms decide, in relation to an inevitable accident, between crashing into a wall (injuring the car's passengers), into a dog walking in the middle of the road or crossing to the other side of the road and crashing head on into a school bus?

Stuart Young is a partner at international law firm Wragge Lawrence Graham & Co and head of their automotive team. As the only law firm involved in the driverless cars consortium UK Autodrive, the firm will play a vital role in bringing autonomous vehicle technologies and integrate driverless vehicles on to the streets of the UK. They will be contributing to the thinking on societal and legal issues including the privacy, cyber-security, liability and legislative aspects.

Interviewed by Alex Heshmaty.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.