Analyses
26 jan 22

New: why OEMs not drivers will be legally responsible for self-driving cars

Driverless vehicles will shift the responsibility from motorists to manufacturers, say lawyers

As the prospect of fully autonomous vehicles becomes a reality, an influential new report has set out a series for how the law should deal with self-driving technologies. In theory, driverless cars should eventually reduce the frequency of collisions, but the technology will also require a shift of responsibility from driver to product manufacturer, according to a report commissioned by the UK government and written by the Law Commissions of England, Scotland and Wales.

These legal experts recommend that in a truly ‘self-driving’ vehicle, the driver would be merely a ‘user-in-charge’ - a human in the driving seat. Responsibility for how the vehicle drives and for any crashes would belong to an Authorised Self-Driving Entity (ASDE) – either the vehicle manufacturer or software developer that secured authorisation for the technology to be used.

In the event of dangerous or careless driving, such as exceeding the speed limit, or a crash, the Law Commissions say a regulator and insurers should have access to all relevant data to understand the fault and attribute liability. The regulator would then work with the ASDE to prevent the incident from happening again, and would have the power to impose penalty sanctions, although the Law Commissioners say their aim is to mirror the airline industry, promoting: “a no-blame safety culture that learns from mistakes. We see this as best achieved through the system of regulatory sanctions, rather than by replicating the criminal sanctions applying to human drivers.”

Driver liability

The user-in-charge would still have certain responsibilities, according to the new proposals, such as insuring the vehicle, checking loads and making sure that children wear seat belts.

Back in 2015, Hakan Samuelsson, then president of Volvo Cars, said Volvo would accept full liability whenever one if its cars is in autonomous mode, but industry-wide reluctance to mirror this responsibility has held back the roll-out of autonomous driving systems.

Self-driving cars arrive

Matthew Avery, chief research strategy officer at Thatcham Research, said: “In the next 12 months, we’re likely to see the first iterations of self-driving features on cars in the UK. 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. The driver will need to be available to take back control at any time, won’t be permitted to sleep or use their mobile phones, the vehicle won’t be able to change lanes and if the driver does not take back control, when requested, it will stop in lane on the motorway. It is critical that early adopters understand these limitations and their legal obligations.”

Autonomous vs ADAS

To clarify this issue, the Law Commissions call for a clear separation between ‘assisted driving’, such as autonomous emergency braking and lane assist where the car supports the driver; and ‘self-driving capability’, where the car is responsible for the entire driving task, monitoring the driving environment and responding to events. The report says car makers should use accurate terminology when marketing these technologies so motorists understand that they still need to pay attention to the road ahead when using assisted driving systems. For a feature to be truly self- driving, the authorisation authority must be satisfied that the technology can control the vehicle to drive safely and legally, even if the ‘driver’ is not monitoring the driving environment, the vehicle or the way that it drives.

“We use the term “self-driving” to indicate a legal threshold. Once a vehicle has been authorised as having a ‘self-driving’ ADS feature, and the feature is engaged, the human in the driving seat is no longer responsible for the dynamic driving task,” says the report.

But, “it will be an offence to describe a feature as ‘self-driving’ if it has not been authorised.”

Driver training required

Representing the fleet sector, the BVRLA says some form of verifiable training will be a key part of assisting the adoption of autonomous vehicles so motorists fully understand their responsibilities as the user-in-charge.

And if a self-driving vehicle ever requires a driver to take back control, it must provide audio, visual and vibratory alerts to the driver, and give sufficient time – at least 10 seconds. As a result, the report also suggests a cautious approach to allowing drivers to sleep or use screens while their vehicle is in self-driving mode, because both activities might require longer than 10 seconds to take back control of the vehicle.

How safe do AVs need to be?

The report also addresses the legally complex issue of how safe an autonomous vehicle needs to be to secure authorisation – should it be as safe as a competent, careful driver or only as safe as an average driver? – although it does not come to a single conclusion, saying any such decision was both technical and political. Consultants suggest that the public will have much higher expectations of autonomous vehicles that they are willing to accept from conventional vehicles and drivers.

“Ultimately, the aim should be to set clear blue water between the performance of an AV and the performance of a human,” according to Five AI, the autonomous vehicle developer. However, it added that if too high a safety standard is set at the outset it will present an unachievable hurdle to obtain and delay the introduction of AV technology with all its benefits.

Mobileye suggested an appropriate threshold for the safety of self-driving technology would be to outperform human accident figures.

“Evidence shows that the average for a human driver to be involved in an accident is once every 50,000 hours of driving. Mobileye believes that a good and realistic goal for an AV, is to be achieve a better average than a human driver,” it said.

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Authored by: Jonathan Manning