Automated Vehicles Act: spotlight on liability

The Automated Vehicles Act (the Act) outlines how liability will be allocated when an automated vehicle commits a driving offence or is involved in an accident, together with certain information disclosure requirements to support regulatory investigations. In this article Ben Gardner outlines the key issues surrounding liability that will need to be considered.

Automated Vehicles Act: spotlight on liability

The Act has now received Royal Assent and, at this stage, creates a framework under which further regulations will need to be developed by the Centre for Connected and Autonomous Vehicles (CCAV) to provide the detailed rules and requirements that are needed to enable widespread deployment. It is based on recommendations following the Law Commission’s extensive three-year review into UK driving laws, responses to multiple industry consultations, and guidance from the CCAV and other stakeholders.

Liability in the era of automated vehicles

With most road accidents currently being caused by human error, a key area of concern for automated vehicles has been where liability sits when a vehicle which has no human driver is involved in an accident.

The Automated and Electric Vehicles Act 2018 (AEVA) confirmed the role of the insurance industry in compensating victims of accidents that involved automated vehicles and the Act begins to build on this concept by providing further detail around responsibility for driving offences and accidents.

In particular, the Act introduces new legal actors which will be liable for accidents and driving offences when certain circumstances apply. These actors are:

• the authorised self-driving entity (ASDE) which is responsible for the way the vehicle drives and for meeting certain other regulatory requirements (such as the manufacturer seeking approval and authorisation to place the vehicle on the market).
• the user-in-charge (UiC) which is the individual in the vehicle and in a position to operate the driving controls (such as the person in the vehicle whilst it is driving itself).
• the no-user-in-charge (NUiC) operator which is responsible for overseeing vehicles that operate without the need for a UiC (such as a vehicle travelling empty, carrying only freight, or offering a passenger transport service).

However, the Act is light on detail and multiple regulations will need to be created to create a clear and robust landscape for liability allocation across the automated vehicle ecosystem.

What you need to know:

• Immunity for drivers: The Act provides immunity from liability for drivers when automated vehicle features are engaged, meaning that liability will likely sit with either the manufacturer or the operator of the vehicle.
• Insurers’ liability: Civil liability to other road users will in the first instance be met by insurers under AEVA, with those insurers recovering any amounts paid out from the party in the liability chain that is responsible for any fault that caused or contributed to the incident.
• Data disclosure and in-use regulation: Organisations have an obligation to disclose safety data to support the allocation of liability to the responsible party or parties. There are sanctions which can be imposed for failing to disclose or falsifying data.

Understanding the liability requirements

The emergence of automated vehicles brings with it a host of legal and ethical considerations, chief among them being liability. The Act helps to clarify where liability for offences and accidents rests and this is underpinned with robust information disclosure requirements. Here’s what you need to know:

1. Driver immunity and its implications

The Act grants users of automated vehicles immunity from driving offences committed by the vehicle (together with any resulting criminal liability) while a self-driving feature is engaged. Instead, the ASDE will be primarily responsible for offences and there is also scope for NUiC operators to be liable in certain circumstances (read more on the operator licensing scheme in our article here). 

However, the Act does provide for situations where driver immunity no longer applies and the UiC will be liable for driving offences and accidents caused by the vehicle. A prime example of this is at the end of a transition demand (which is where the vehicle notifies the UiC that it needs to regain control of the vehicle because it can no longer drive itself, such as where there are adverse weather conditions). Once a transition demand has been initiated, the UiC is afforded a period of time to regain control of the vehicle, following which they will be liable for the vehicle.

There are also other exceptions to driver immunity with the UiC being responsible for paying tolls and where the systems or equipment within the vehicle have been tampered with.

2. Interaction of the Act with AEVA and other road traffic laws

In the event of accidents, civil liability to other road users will be met by insurers under the AEVA and the insurer will then recover any amounts paid out from the responsible parties which, again, is likely to include the ASDE or the NUiC operator. The primary objective here is to ensure that victims of accidents caused by autonomous vehicles can receive compensation easily and quickly.

In addition to this, the Act creates a number of new criminal and civil penalties for ASDEs and NUiCs where they are, amongst other things, deemed responsible for driving offences and accidents. This underlines the importance of robust testing and monitoring to ensure that automated systems are safe and secure throughout the lifecycle of a vehicle.

It also means that organisations must work closely with insurance providers to understand coverage limits and exclusions to ensure that no liabilities slip through the net. Ensuring that automated vehicle products and services are adequately insured will be a critical component of operational planning.

Further details of the responsibilities of ASDEs and NUiCs, as well as the allocation of liability in the event of accidents, will be contained in the regulations which need to be developed following the introduction of the Act. The Act also grants powers to amend existing road traffic laws to clarify how they apply to automated vehicles and to reflect the concept of driver immunity.

3. Mandatory Disclosure and Compliance

Providing access to complete and accurate data will be crucial to assessing liability and the Act contains detailed requirements that mandate the sharing of data by ASDEs, NUiC operators, and other entities which may be regulated by the Act.

In part, these requirements support the obligations of insurers under AEVA who will need to rely on vehicle-generated data to verify that the vehicle was in the alleged location, was driving itself, and to assist in identifying what party in the liability chain is responsible for any fault that caused or contributed to the incident. This data will also support analysis around transition demands and responses times to assess whether driver immunity is applicable or not.

If organisations fail to comply with their data sharing obligations, sanctions may include investigations that involve inspection or premises and seizure of property, suspension of authorisations and licences, and monetary penalties.

Detailed regulations need to be developed to specify the different data sets that need to be collected and when they must be shared. There will be a careful balancing act required to ensure a degree of transparency that promotes safety and allocates liability but also safeguards the intellectual property and trade secrets of organisations. The various consultations CCAV will need to run to develop the regulations will give interested stakeholders the ability to make their concerns known and suggest potential data sharing methodologies.

Key takeaways

Driver immunity means that ASDEs and NUiC operators will be required to stand behind their products and services. Under the Act liability for driving offences and accidents will more than likely attach to ASDEs and NUiC operators so robust testing and monitoring of their automated vehicles will be crucial.

Understanding the role of the insurance industry under both AEVA and the Act will be an important means of ASDEs and NUiC operators managing their risk exposure and all stakeholders need to come together to develop suitable data sharing principles that will underpin the industry.

A range of consultations are likely to follow which will provide organisations with the ability to input into and influence both the new liability regulations under the Act and the amendments which need to be made to existing road traffic laws. Those wishing to offer goods and services in this space should be alert to these consultations and calls for evidence being issued over the coming months.

More information

Our experts have been engaged throughout the inception, development and introduction of the Act and we have prepared a series of articles to explore how the Act will impact on organisations offering goods and services in this space.

We produce a bi-annual legislation tracker, Accelerate, that helps our clients stay ahead of the legal changes affecting the automotive sector. You can subscribe here.