Out-Law / Your Daily Need-To-Know

Driverless car laws will lead to 'trench warfare' on liability, warns UK peer

Out-Law News | 22 Feb 2018 | 5:07 pm | 4 min. read

The way that proposed new driverless car laws have been worded in the UK would lead to "trench warfare" over liability for accidents involving such vehicles, a UK peer has warned.

In a debate on the Automated and Electric Vehicles Bill before the House of Lords, Lord Campbell-Savours said "the whole approach to vehicle liability will turn into a legal nightmare in the end".

"We will end up in trench warfare between the likes of Microsoft, Tesla, Dyson, Ford, Mitsubishi and the big insurance companies and poor old Joe Bloggs, the innocent man caught in the middle, with 100 cars barping and beeping behind him as he sits at a congested roundabout with two software systems in two separate cars screaming and arguing with each other over who should go first," Lord Campbell-Savours said.

"If the wrong one proceeds and clouts the other, there will be some very angry queueing drivers behind. It will be like a road traffic accident in Italy in the 1950s and 1960s…. Whenever there was an accident there would be a huge crowd of people surrounding the cars. The reason was of course because there was only third-party insurance and someone was going to pay. That is the kind of argument that I see us getting into," he said.

The Automated and Electric Vehicles Bill was introduced before the UK parliament in October 2017. The Bill has already been scrutinised by MPs in the House of Commons. It passed over to the House of Lords for further scrutiny at the end of January and was read for a second time before the Lords on Tuesday.

The Bill makes provision for the registration of all driverless cars in the UK, and addresses how liability for accidents involving such vehicles should be apportioned.

Under the Bill, insurers would generally be liable for damage stemming from an accident caused by an automated vehicle "when driving itself" where the vehicle is insured and "an insured person or any other person suffers damage as a result of the accident".

Where driverless cars are not insured, owners would be left liable for the damage stemming from accidents.

Insurers can exclude or limit their liability for damage if insured individuals make "software alterations" that they are prohibited to make under their insurance policy, or if they do no install "safety-critical software updates" that they at least "ought reasonably to know" are "safety-critical".

Where insurers are liable to make payment for damages to those impacted by an accident, they have a right to raise a claim against those responsible for the accident for recovery of the money they have paid out.

Lord Campbell-Savours said, though, that the provisions create uncertainty over liability, including over which car's insurer would be liable for damage and whether insurers would "stand up at the end of the day".

"People pay premiums to insurance companies and there comes a point where someone has to take a decision on conditions of software conflict," he said.

"I ask myself a simple question. Should a vehicle owner who is not driving, an attendant driver, a passenger or any other person be held responsible in law in any way for a software malfunction beyond their knowledge or control that leads to damage to another vehicle or injury to others? By others I mean people in the car allegedly at fault, persons in another vehicle, pedestrians in the street or persons on private property. What about a multiple accident on a motorway?" he said.

The Labour peer also raised concern about how liability for road traffic offences will be attributed where driverless cars are in operation.

He said: "Again, I ask a simple question: who is liable when the software leads the vehicle to drive down a cycle lane, which is punishable in law? Who is liable if the vehicle turns right at a 'No right-hand turn' sign, which is punishable; or exceeds the speed limit, which is punishable; passes through a red light, which is punishable; or enters a one-way street the wrong way –punishable? I have no reason to believe that these issues have been sorted out."

Further problems in relation to the development of driverless cars mean that "the high-street agenda currently being pursued is premature", Lord Campbell-Savours said.

"I regard the development of driverless car technology as premature and, in the main, probably unnecessary – a huge black hole down which millions, perhaps billions, of pounds will be lost as promoters increasingly experience regulatory problems, software failure problems, contested legal liability ..., roadside vehicle control technology problems, road pricing arguments, public expenditure or infrastructure constraints, traffic delays leading to congestion and, most of all, driver frustration, which does not appear to have been considered to date," Lord Campbell-Savours said.

"I foresee huge driver frustration with the technology. I am not suggesting that driverless vehicles will never happen; they will come one day, but only after the increasing problem of congestion has been resolved – particularly as every year there are more and more vehicles on our roads – and public transport has been hugely improved," he said.

Insurance expert Chamika Hand of Pinsent Masons, the law firm behind Out-Law.com, said that Lord Campbell-Savours' approach reflects "the natural concerns and suspicions about this and any new technology that could cause harm to the population".

"No guidance has as yet been given as to how we can ensure that the software controlling the new vehicles will operate seamlessly let alone how it will deal with the ethical dilemma of how to prioritise the safety of passengers and pedestrians and other road users," Hand said. "However, this technology is already here in some forms, including driver assist parking, and it is widely accepted that a regulatory framework to include compulsory insurance to cover autonomous vehicles is vital if we are to allow these vehicles on our roads."

"Liability issues relating to technologically complex products are not a new challenge and to focus on 'trench warfare' to allocate blame does not diminish the need for a compulsory insurance system that covers these vehicles," she said.

Hand said that there is a chance to address some of the "inadequacies of the proposed Bill and current regulatory regime" during the next committee stage of the Bill's journey through the Lords.

"What is apparent from the debate this week is that a framework for primary and secondary legislation needs to be capable of adapting quickly to the ever changing landscape," Hand said.