The first driverless car was probably Herbie from the 1968 Disney film The Love Bug. Fifty years on, with semi-autonomous cars very much a reality on our roads, and with fully Herbie-like autonomous vehicles, absent any Disney magic, soon to make an appearance, we review the potential product liability implications.

In an earlier article we commented on the broader liability issues arising from autonomous cars. As we indicated, as a matter of public policy, the Government is likely to focus on one motor insurer as the first port of call for any third party claim to simplify the claims process. However, that will not preclude other proceedings based on product liability.

Overview

  • The vast majority of road accidents are caused by driver error. However, car automation will arguably substantially increase road safety by reducing the volume and severity of accidents.
  • The responsibility for avoiding accidents will increasingly shift from the driver to autonomous car manufacturers. This will increase their exposure to product liability claims.
  • Product liability laws and regulations will have to adapt and evolve to accommodate the autonomous technologies as they continue to develop.
  • Autonomous car manufacturers should keep their eyes on the ‘road ahead’ to ensure compliance and minimise risks as they continue to drive their industry forward.

Autonomous cars

Autonomous and semi-autonomous cars can be broadly divided into the following categories:

  • Autonomous in respect of specific functions only
  • Limited self-driving
  • Full self-driving (also known as driverless cars).

The majority of modern cars on our roads today fit within the first two categories above and have automated features, for example automated emergency braking, blind-spot assistance systems and lane change assistance.

Driverless cars

With the advance of radar and GPS mapping, the driverless car is also increasingly becoming a possibility:

  • Most famously, Google has reported trials of a driverless vehicle fleet.
  • Following successful trials, the US states of Nevada, California and Florida have all passed laws permitting driverless cars to drive on their roads.
  • On 19 July 2015, the UK Government published a safety code for driverless testing on UK roads. It had previously concluded in April 2015 that the UK’s existing legal and regulatory framework does not present a barrier to the testing of driverless vehicles on public roads. Failure to adhere to the code will be regarded as an indicator of negligence.

Product liability claims

The distinctly different approaches towards development of fully autonomous cars in the USA, as against Europe and the UK, is critical:

  • Fully autonomous vehicles of the Google variety in the US have no steering wheel and no handover protocol for a driver.
  • In the UK (to accommodate European Union laws) even fully autonomous cars have to have protocols and systems for handover to the autonomous driverless systems and then protocols for handover back to the driver in certain circumstances. These additional handover systems add a whole new level of engineering complexity and risk of human/system error.

However, fully autonomous cars will only slowly enter the general pool of cars on the road. Semi-autonomous systems in cars are already here, and increasingly so, and are most likely to give rise to the first product liability claims.

In England and Wales, a claimant is likely to bring an action against the manufacturer under the Consumer Protection Act 1987. Section 2(2)(a) would impose strict liability on the producer of an autonomous car, semi-autonomous car or system within that car if damage was caused by a defect in the car or system. There would be a defect if the car was not as safe as “persons generally are entitled to expect”.

This removes the need to prove the manufacturer’s negligence and is based on the consumer’s expectations (the consumer expectation test).

The instructions/warnings provided with the cars are therefore crucial to the issue of product liability.
Notably, Mercedes-Benz’s Distronic Plus, which uses automatic braking to help reduce the risk and severity of frontal collisions, is accompanied by the following warning:

“...always pay attention to traffic conditions even when DISTRONIC PLUS is activated. Otherwise, you may fail to recognise dangers in time, cause an accident and injure yourself and others.”

Apportioning blame

There are likely to be complexities in apportioning blame between the driver, who may have failed to take control when it was possible and reasonable to do so, and the automated technology itself. The driver may well be found to contributorily negligent.

The consumer expectation test may for example, raise the following issues:

  • A claimant may allege that they did not fully appreciate the active safety devices on the car.
  • A claimant’s expectations may be regarded as unrealistic in terms of what the technology is actually capable of.
  • It is inevitable that there will be arguments as to whether the claimant, as a driver, should have intervened with the autonomous driving function or not.

Arguably, as the technologies become more familiar to consumers, the risks to autonomous car manufacturers will reduce because it will be easier to comply with the consumer expectation test.

Overall, establishing fault in accidents involving autonomous cars will involve complex questions of liability shared by drivers, car manufacturers and technology designers. To assist, insurers may require greater access to data that could be used to reconstruct what happened in the moments preceding an accident.