Human drivers should NOT be liable if self-driving tech causes a crash


The arrival of self-driving cars on our roads has come a step closer following new recommendations for legal reforms, making manufacturers and software developers – rather than human drivers – liable if a vehicle crashes.

The Law Commission today published a report calling for a new ‘Automated Vehicles Act’, which will regulate vehicles that can drive themselves and make clear who could face prosecution if a self-driving car drives dangerously or causes an accident. 

This would create a new legal framework to resolve the biggest grey area concerning the introduction of self-driving technology on our roads, which is who is deemed liable when something goes wrong. 

Safety experts described the report as a ‘crucial first step’ that could see self-driving cars used on our roads in the next 12 months if recommendations are approved by parliament.

Is this a sign that self-driving cars are taking a step closer? The Law Commission today published recommendations stating that a motorist should NOT be held liable if a vehicle crashes when a self-driving system is active

The Law Commission’s proposal published today, outlines that when a self-driving system is active, a human in the driver’s seat would legally become a ‘user-in-charge’ – and would avoid prosecution if the vehicle drives itself dangerously or causes a crash.

This would mean immunity from a wide range of offences, such as exceeding speed limits and running red lights when the self-driving feature is in operation. 

Instead, the company or body that obtained the authorisation for the technology’s use would become an ‘Authorised Self-Driving Entity’ (ADSE) and be held responsible for the car’s actions in the eyes of the law.

Following a collision, the ASDE would be required to work with a regulatory body, in order to avoid repeat occurrences by providing data to understand who was at fault and where liability lies. 

The ADSE could also face sanctions if regulators deem necessary. 

A user-in-charge would still be required to retain some duties, such as holding a driving licence, having insurance and ensuring occupants are wearing seatbelts. And they will have to remain within the drink-drive limit. 

The report recommends that when a self-driving system is active a human in the driver's seat would legally become a 'user-in-charge' - and would avoid prosecution if the vehicle drives itself dangerously or causes a crash

The report recommends that when a self-driving system is active a human in the driver’s seat would legally become a ‘user-in-charge’ – and would avoid prosecution if the vehicle drives itself dangerously or causes a crash

The Law Commissions said there should be additional requirements for vehicles authorised to drive themselves without there being a human in the driver's seat at all where in this case all human occupants become 'passengers' and are void of liability

The Law Commissions said there should be additional requirements for vehicles authorised to drive themselves without there being a human in the driver’s seat at all where in this case all human occupants become ‘passengers’ and are void of liability

Crucially, the Law Commission adds that manufacturers will need to market their vehicle technology appropriately, ensuring there is a clear distinction between ‘assisted-driving’ features, requiring a human to be engaged at all times – such as adaptive cruise control – and those systems that allow for self driving.

The transition to the safe introduction of automation with self-driving capabilities is fraught with risk as we enter the early stages of adoption

Matthew Avery, vehicle safety expert for Thatcham Research 

It says this clear distinction ‘would help to minimise the risk of collisions caused by members of the public thinking that they do not need to pay attention to the road while a driver assistance feature is in operation’.

It adds: ‘A vehicle should only be authorised as self-driving if it is safe even if an individual is not monitoring the driving environment, the vehicle or the way that it drives.’ 

It comes after a 2020 ruling in German court found that Tesla’s use of the term ‘Autopilot’ to describe its cars’ autonomous driving capabilities was ‘misleading for consumers’.

The Law Commission also called for additional requirements for vehicles authorised to drive themselves without there being a human in the driver’s seat at all. 

Occupants in this scenario would be considered ‘passengers’ without a user-in-charge and the licensed operator would become responsible for overseeing the safety of the entire journey. 

There would also be requirements for passenger services to be accessible, especially to older and disabled people.

Commenting on the report, Public Law Commissioner Nicholas Paines QC, said: ‘We have an unprecedented opportunity to promote public acceptance of automated vehicles with our recommendations on safety assurance and clarify legal liability.’ 

Transport Minister Trudy Harrison added: ‘The development of self-driving vehicles in the UK has the potential to revolutionise travel, making every day journeys safer, easier and greener.

‘This Government has been encouraging development and deployment of these technologies to understand their benefits. However, we must ensure we have the right regulations in place, based upon safety and accountability, in order to build public confidence.

‘That’s why the Department funded this independent report and I look forward to fully considering the recommendations and responding in due course.’

Commenting on the report, Edmund King, AA president, said it is vitally important that drivers are not encouraged to take their hands off the wheel until self-driving systems are regulated and fail-safe. 

‘The Law Commission is right to distinguish between driver-assistance features and self-driving and to ensure driver assistance features aren’t marketed as self-driving,’ he said.

‘What is less clear is when such technologies can be used on the road. 

‘The Department of Transport has already missed its 2021 ambitions to get trails of fully driverless cars on the roads although there is now a trail underway in Milton Keynes which we will watch with interest.

‘Meanwhile, there still remains a large level of scepticism amongst the driving public who are unconvinced that fully autonomous cars can co-exist alongside human drivers.’

Matthew Avery, chief research strategy officer at Thatcham Research, an organisation which was part of the consultation for the Law Commissions’ report, said the safe introduction of self-driving systems is ‘fraught with risk’ but legal reforms put forward by the commission would be ‘a significant step’ to bring clarity for industry and consumers regarding who is liable if collisions occur.

MPs first revealed plans to allow for Automated Lane Keeping Systems to be used on motorways back in August 2020, which would be the first self-driving feature where motorists are allowed to take their hands off the wheel and not focus on the road while it is active

MPs first revealed plans to allow for Automated Lane Keeping Systems to be used on motorways back in August 2020, which would be the first self-driving feature where motorists are allowed to take their hands off the wheel and not focus on the road while it is active

Drivers of cars fitted with 'Automated Lane Keeping Systems' (ALKS) are expected to be legally allowed to use them on motorways but only at speeds up to 37mph, though there still remains questions over who would be liable if these vehicles were involved in accidents

Drivers of cars fitted with ‘Automated Lane Keeping Systems’ (ALKS) are expected to be legally allowed to use them on motorways but only at speeds up to 37mph, though there still remains questions over who would be liable if these vehicles were involved in accidents 

‘In the next 12 months, we’re likely to see the first iterations of self-driving features on cars in the UK,’ he said.

What is ALKS and how does it work? 

Automated Lane Keeping System technology would be the most advanced car automation so far seen on UK roads. 

When activated, the ALKS keeps the vehicle within its lane, controlling its movements for extended periods of time without the driver needing to do anything. 

However, the driver must be ready and able to resume driving control within seconds if prompted by the vehicle.

Different manufacturers all have their own systems, but generally it involves  a forward-looking camera, usually behind the windshield, laser sensors, infrared sensors and radar sensors to detect if you’re unintentionally drifting out of lane.

When the sensors detect the car is moving out of lane, it can automatically apply braking to one side of the vehicle to correct the vehicles position in the road.

Rather than subtle braking, some systems can use discreet steering interventions. 

ALKS is designated a Level 3 system by the UN’s Economic Commission for Europe.

This signifies that the person at the wheel is not driving when the automated systems are engaged, but can step in at any time and must take over at the system’s request.

With a Level 3 system activated, the user is allowed to do other things, such as watch a movie or even send a text message, but must retain some level of alertness to what is happening around them.

There are five stages of autonomy for self-driving cars, with Level 5 being full autonomy.

While it is similar to the technology already being used by Tesla, which it calls Autopilot, the US firm’s system is only deemed Level 2 – where drivers are expected to keep their full attention on traffic.

Lane Keeping Assist – a function that’s been available in new cars for over a decade – is also deemed to fall into Level 1 and 2 because it only alerts the driver that they are veering out of their lane and it is up to the user to steer the vehicle.

This includes the use of Automated Lane Keeping Systems – or ALKS – on Britain’s motorways at speeds up to 37mph, which was first announced by MPs back in August 2020.

ALKS can steer a car by itself and allow drivers to take their hands off the wheel entirely. Such systems are already available in some of the latest cars on the market, including the Mercedes-Benz S-Class.

Mr Avery added: ‘It’s significant that the Law Commission report highlights the driver’s legal obligations and how they must understand that their vehicle is not yet fully self-driving: it has self-driving features that, in the near future, will be limited to motorway use at low speeds.’

He went on to explain that the Law Commission’s recommendation is that a user-in-charge will need to be ready to take back control from a self-driving system at any time – and won’t be permitted to sleep or use their mobile phone – when the features are enabled. 

And if any sort of monitoring is required – in extreme weather conditions, for example – it should not be considered autonomous and current driving rules should apply.

‘It is critical that early adopters understand these limitations and their legal obligations,’ Mr Avery warned.  

Jim Holder, editorial director at consumer motoring magazine What Car?, said the arrival of an Automated Vehicles Act would be a ‘crucial first step’ in a line of many legal questions autonomous vehicles must navigate and answer in the future. 

‘By placing responsibility of the vehicle with manufacturers and software developers when in ‘self-driving’ mode, the legislation will act as a significant incentive for manufacturers to ensure any product they introduce is safe and trustworthy,’ he said. 

‘Already, current driver-assistance features on new cars have come under legal scrutiny based on potentially misleading buyers with their capabilities. 

‘As manufacturers continue to develop autonomous technology, it’s imperative the legislation keeps up.’ 

Today’s report will been laid before Parliament and the Scottish Parliament. 

It will be for the UK, Scottish and Welsh Governments to decide whether to accept the Commissions’ recommendations and introduce legislation to bring them into effect.   

Peter Shervington, legal director at law firm Eversheds Sutherland, said: ‘This Law Commission report provides welcome clarity and makes a strong case for the Government to make the judgement as to ‘how safe is safe enough’, publishing clear safety standards against which to approve and regulate autonomous vehicles so that the square peg of the driverless car finally fits through the round hole of automotive law.’

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