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How UK law is adapting to cope with autonomous vehicles

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Britain is one of the leaders in establishing a legal framework that would allow driverless cars to use the country’s roads, but important questions remain.

Connected and autonomous vehicles (CAVs) are expected to become a reality on roads across modern economies eventually. However, it is widely recognised that before CAVs can become commonplace, they must first be adequately and appropriately regulated. Legislating for CAVs remains a significant challenge for lawmakers and specific regulations relating to them are being introduced at divergent paces globally.

The UK is regarded as being among the frontrunners with respect to the introduction and evolution of legislation and regulations in this area and the Government has announced its intention to “lead the way globally in embracing the safe development of driverless technology”. The Automated and Electric Vehicles Act 2018 (AEV Act) received Royal Assent in July 2018; there is an ongoing review of the area by the Law Commission, and the Government has set up a new department, the Centre for Connected and Autonomous Vehicles.

With testing schemes underway in cities including London and Coventry, the recently updated Code of Practice for Automated Vehicle Trialling provides additional clarity as to what is expected of organisations wishing to trial autonomous vehicles on the roads.

Central to regulation of CAVs is the issue of liability. An examination of how it is apportioned under existing UK regulations is indicative of where most preparation has been made and where gaps are likely to be found once vehicles enter series production and become more widely adapted to real-life scenarios.

The AEV Act states that owners of CAVs will only be liable in limited circumstances, such as when a driverless car is not insured. With very limited exceptions, Insurance is mandatory for all vehicles in the UK under Section 143 of the Road Traffic Act 1988. While the main requirement lies with the user, section 144A of the Act provides that if a vehicle does not meet insurance requirements, the person in whose name the vehicle is registered is guilty of an offence.

The first part of the AEV Act introduces a new insurance regime which clarifies that insurers will be liable for damage stemming from an accident caused by a CAV when the insured vehicle is in self-driving mode and an insured person or any other person suffers damage as a result of the accident. Depending on the circumstances, an insurer could in turn seek to bring its own claims against the manufacturer, owner or driver, for example if the insurer considers a manufacturing fault is the underlying cause of the accident.

In addition, insurers are able to exclude or limit their liability for damage caused by an insured individual making ‘software alterations’ that they are prohibited from carrying out under their insurance policy, or failing to install software updates that they know (or ought reasonably to know) are safety-critical. It should be noted that in respect of damage to third parties, an insurer can only exclude liability for damages where the insured person knew software alterations were made that were prohibited under the policy.

As regards manufacturer liability, current regulations in the UK, as with other places like Germany and California, do not specifically provide for manufacturer liability, but instead prospective claimants must rely on wider tort or product liability, or insurance legislation.

What about user liability? By their very nature, driverless vehicles don’t have a ‘driver’ in the traditional sense. However, lawmakers have in some cases sought to address the circumstances in which a ‘user’ can be held liable for an accident. The UK AEV Act doesn’t currently contain any specific provisions relating to user liability, but the Law Commission has suggested that the legislation should be developed further to clarify the role of the ‘user-in-charge’.

Development of CAVs is part of the widespread change sweeping the world, as the development of new technologies such as artificial intelligence revolutionise the role that technology can play in our lives. Ultimately, consumer confidence in CAVs will be key to ensuring their widespread adoption. UK policy-makers and regulators appear to be alive to both the potential and the risks that can arise out of such game-changing technology, and they are developing regulatory frameworks in order to manage these changes.

As with all technologies, however, there are risks and areas of concern that need further development or consideration. Manufacturers and others in the supply chain should therefore continue to proactively engage with the various consultations and policy development initiatives taking place, to ensure that a regulatory framework is in place that can optimally balance risks against the potential benefits of CAVs and help provide an important part of the framework for this new era of transportation.

Steven Baker is a partner at global law firm White & Case.

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