It is projected that by 2021, ‘automated vehicles’ (driverless vehicles) will be on the road in the UK.  The law must therefore be clear with regards to liability when a road traffic accident involving a driverless vehicle inevitably occurs.

The Automated and Electric Vehicles Act 2018, states that, ‘a vehicle is “driving itself” if it is operating in a mode in which it is not being controlled, and does not need to be monitored, by an individual.’   The vehicles are not therefore driven, controlled or monitored by the person travelling in them.

Section 2 of the 2018 Act states that where an accident is caused by a vehicle driving itself on a road or public place in Great Britain and the vehicle is insured, the insurer of the automated vehicle is liable for any injury caused. The onus is therefore put on the insurer of the automated vehicle. This will hopefully avoid lengthy legal battles between insurers and manufacturers as to who is at fault.  This is the general rule however there are some exceptions to this.

Once the claim is settled and the injured party has been compensated by the insurer, the insurer may then decide to claim against another third party, for example the manufacturer of the automated vehicle, for any costs/damages incurred if it can be shown that they were at fault.

Nicholas Tse, a partner at Brown Rudnick LLP, recently gave a talk to the International Bar Association with regards to apportioning fault where the use of artificial intelligence (“AI”) goes wrong.  He believes that, “the idea of trying to have some form of no-fault strict liability is the most pragmatic solution society can offer to victims of AI accidents. The UK act does that by putting the onus on the insurer.” It can be difficult to prove how artificial intelligence has gone wrong and therefore this debate should be avoided “too often or too extensively,” according to Mr Tse. The law will also need to “get to grips with the ‘full chain of liability’ in AI incorporating the manufacturer and service provider.”

Exceptions/Limits to the Liability of the Automated Vehicle insurer

There are some exceptions and limits as to when the automated vehicle insurer can be liable for an incident however.

The insurer of the automated vehicle is not liable to the person in charge of the vehicle if the accident caused was ‘wholly due to the person’s negligence in allowing the vehicle to begin driving itself when it was not appropriate to do so.’ Further guidance will need to be provided as to when this would apply. It will need to be made clear as to when it would be inappropriate to allow the vehicle to drive itself.

Where the insurer of an automated vehicle is liable to an injured party as a result of the accident, but the accident, or damage resulting from the accident, was to any extent caused by this injured party, Contributory Negligence can be applied.

Further to the above, the insurers of a driverless vehicle may limit or exclude their cover for damage which has been suffered by an injured party, where the accident has been caused as a direct result of:

(a) software alterations made by the insured person, or with the insured person’s knowledge, that are prohibited under the policy, or

(b) a failure to install safety-critical software updates that the insured person knows, or ought reasonably to know, are safety-critical.

If the scenarios in (a) or (b) above occur, it may be that the injured party will claim against the automated vehicle owner directly. However, issues may arise where the injured party is the owner of the vehicle as they will need to prove that the automated vehicle caused the incident and that the above exceptions did not apply. In order to make this less complicated, it will therefore need to be established, for example, how owners of driverless vehicles are going to know when to update the software; who will provide this information and when?

In the next few years, it is hoped that further guidance will be provided with regards to apportioning liability for incidents involving automated vehicles. The law as it stands is unclear, and issues such as maintenance of an automated vehicle, frequency of services and frequency of software updates still need to be fully clarified. Mr Tse also concluded that, potentially, vehicle insurance premiums could rise if the onus is on automated vehicle insurers with regards to road traffic accidents.

If you have been injured in a road traffic accident of any kind, Farleys’ personal injury team can assess whether you have a case for compensation, often on a no-win-no-fee basis. Call the team today on 0845 287 0939 or complete our online contact form.