Rapid technological advances are slowly starting to eliminate the need for human control – nowhere is this more evident than with the development of driverless cars. Driverless cars are fully autonomous vehicles that are manufactured using software that governs how the car operates, for example, by using sensors and radars to detect when to brake. The Association of British Insurers claim that ‘90% of road traffic accidents are caused by human error’, thereby implying that driverless cars will significantly improve road safety. While this may be the case, there is one overriding question: who will be liable if an autonomous car crashes? Will it be the owner of the vehicle, the manufacturer, or the software engineer?
With regard to cars that have high automation, but still require a level of human control, the Department for Transport states that the law of strict manufacturer liability is likely to apply in the event of a defect that causes a crash. This derives from the Consumer Protection Act 1987, where Section 3(1) defines a defective product as one that can, inter alia, damage property as well as cause death or personal injury. However, Section 4(1)(e) states that a defence can arise if the manufacturer can prove that ‘the state of scientific and technical knowledge at the relevant time was not such that a (manufacturer) […] might be expected to have discovered the defect if it had existed in his products while they were under his control.’ This defence may be difficult to prove, as manufacturers of highly automated vehicles may be expected to have the requisite technological knowledge for the production of such cars. Therefore, it is highly likely that they will nonetheless be automatically liable, irrespective of any fault on the driver’s part.
The law on strict liability appears to be problematic, considering that drivers and car owners are meant to be responsible for the safety of their own vehicles. It could be that tort law on negligence is better placed to impose liability for both high and fully automated vehicles. For these claims to be successful, the claimant would need to establish that:
The manufacturer owed them a duty of care
This duty of care was breached
The breach caused the claimant’s harm
The law on negligence has developed piecemeal through the common law so it is more than likely going to be developed further to become more suitable for machine technology, such as autonomous vehicles. The current law deals with human error, yet with driverless cars, it appears that the direct human-driver error has been replaced with an error on the manufacturer’s or software engineer’s part. The law, therefore, needs to adapt to reflect this change. There have been instances where test models have caused accidents and even deaths, so it is interesting to note how the companies in question responded to the issue of liability.
In May 2016, driver Joshua Brown died when his Tesla Model S crashed into an oncoming lorry while in autopilot mode. The autopilot sensors failed to recognise the lorry’s trailer, so the Tesla model kept driving while the lorry crossed the highway. Although this car was not fully autonomous, as it was simply on autopilot mode, it certainly raised a lot of questions regarding the safety and liability of completely driverless cars. Tesla’s CEO, Elon Musk, has openly claimed that they will not assume full liability if their driverless cars are involved in a crash, as “point of views on autonomous cars are much like being stuck in an elevator in a building. Does the Otis [Elevator Company] take responsibility for all elevators around the world, no they don’t." However, he did suggest that “if it is something endemic to our design, certainly we would take our responsibility for that.”
This directly contrasts the position that Volvo are taking – they released a statement accepting full liability for crashes, unless the driver or third party are evidently at fault. They take this view with the hope that it would speed up the process for creating new laws that deal with the complexities of driverless car crashes. This is a bold step from such a company and shows how they identify that the main risk lies with a manufacturing fault. So far, this is the only certainty that an autonomous Volvo car driver will have in the event of a crash.
The different stances from the two major car companies highlight the continuing uncertainty with the issue of liability. While Volvo are assuming full liability, they need new laws in place to assist them. When a driverless car crashes, there are too many potential parties involved for the UK law on negligence to be easily satisfied. While technology continues to advance rapidly, the law to protect it does not. However, fully autonomous cars are still in test phases, so there is still plenty of time for the law to catch up.