Driverless Cars: Who's in Control?

Driverless cars could be on the UK’s roads as early as 2025 under a £100 million government plan, announced on Friday, to speed up the rollout of driverless technology and put the UK at the forefront of the industry.

Several years ago, it was thought that driverless cars might be on our roads by 2021. That hasn’t happened, but not due to Covid-19 or the chip shortage problem. Manufacturers have stepped back and realised that there are more hurdles to overcome before entering this industry than previously thought: weather conditions, different road markings around the world (meaning driverless cars will need to learn how to drive differently from country to country), and whether some element of human intervention will still be required.

In the meantime, consumers have been enjoying a host of “advanced driver assistance systems” (“ADAS”), such as cruise control, automated lane assist functions, parking assist technology and automated braking systems. However, these systems are designed to support the human driver, not replace them. The driver still needs to make sure they are in control of the vehicle at all times. In the event of an accident involving a vehicle with ADAS, liability rests with the driver rather than the manufacturer, unless the driver successfully argues that the accident was caused by faulty parts (resulting in a claim against the manufacturer under existing consumer protection legislation).

The introduction of driverless cars (which don’t require a human to pay attention to the road) raises new challenges from a product liability perspective. Who will be responsible in the event of an accident? What data will be available to demonstrate who is at fault?

The Government has said that new laws will make manufacturers (and third parties involved in the supply chain, such as software providers) responsible for a vehicle’s actions when driverless mode is switched on, meaning the human driver would not be liable for accidents. Under the UK plans, the individual owner of the driverless car would still be responsible for insuring the vehicle, maintaining it in a roadworthy state, reporting accidents, parking and ensuring child passengers wear seatbelts, but not be liable for accidents.

The driverless industry is predicted to be worth £52 billion by 2035 and the Government’s announcement of its plans to speed up the rollout of driverless cars is welcomed by many, however critics are concerned that many drivers will be confused about the boundary between ADAS and driverless vehicles, and this problem can be aggravated by misleading marketing. For example, Tesla has faced criticism for the branding of its “Autopilot” features, which enables its vehicles to accelerate, brake and steer with no driver inputs. The feature is touted as being the most advanced semi-autonomous system currently available, but it has also been linked to a series of deadly crashes, in which Tesla has sought to evade liability by pointing to its owner’s manual which urges drivers to keep their eyes on the road and their hands on the wheel at all times.

As recommended by the UK Law Commission in a report published in January 2022, there will therefore need to be a clearcut legal distinction between driver assistance features (which require ongoing human monitoring) and true driverless features (which do not). The Law Commission has suggested a new authorisation scheme to decide whether any given driver assistance system is or is not self-driving as a matter of law. Once a vehicle is confirmed as having driverless features, and that feature is engaged, legal accountability will change and the person in the driving seat would become a “user-in-charge” with immunity from a wide range of offences related to the way the vehicle drives, from dangerous driving to exceeding the speed limit or running a red light.