The death of Joshua Brown in the US, the first known death involving a self-driving car, was confirmed by Tesla Motors last week. Shazia Yamin discusses the legal issues of having selfdriving cars on the road. 

Mr Brown had been driving Tesla’s Model S vehicle in autopilot mode when he died. According to Tesla’s account of the crash, the car’s sensor system failed to distinguish a large white 18-wheel truck and trailer crossing the highway.

Tesla has blamed this failure on the bright spring sky, against which the white trailer was difficult to distinguish. Tesla said the self-driving car attempted to drive full speed under the trailer “with the bottom of the trailer impacting the windshield of the Model S”.

Tesla have also pointed out that this was the first death to occur in 130 million miles of driving in its autopilot mode, versus an average of one death per 60 million miles of ordinary driving. Whilst the tragic accident may have arisen as a result of an anomaly, it has served to reignite the debate surrounding the widespread introduction of driverless cars.

The touted benefits associated with the use of this technology are many, including improvements in road safety (with human error being a factor in over 90% of road collisions), together with a reduction in vehicle emissions and congestion.

At the same time, fears over handing responsibility for braking, steering and judgments to machines remain at the centre of any debate over the future reliance on such technology.

A study titled “Connected and Autonomous Vehicles – The UK Economic Opportunity” commissioned by the Society of Motor Manufacturers and Traders and published by KPMG in March 2015 concluded that fully autonomous vehicles were expected to be available in the UK after 2025, with the vehicles becoming common place on UK roads many years after that.

There are a number of legal dilemmas presented by the introduction and reliance upon such technology. Will it be the human driver or the technology within the car that is in control of the vehicle? Who would be to blame in the event of a collision involving an autonomous vehicle – the human occupant or the vehicle manufacturer?

How are the principles of negligence to be applied to a situation where it is the technology that is determined to be in control? How is criminal liability to be assessed in the event of a collision? Further, what happens to the data collected by autonomous vehicles? How is this data secured and how are risks of hacking minimised? In the event of a collision, this data will play a key role in determining the cause; who has control of it in those circumstances and is to be handed over to authorities?

It is clear that vehicle insurers will need to equip themselves for a shift away from the traditional principles governing motor liability to a shift towards the application of principles of product liability to road traffic accident scenarios.

How are these principles to be adapted and how are these risks to be insured against?

In February 2015 the Department for Transport published a summary report and action plan for the introduction of driverless cars to the UK. This was followed up in July 2015 with a Code of Practice for the testing of driverless vehicles.

The key aim of the DfT in the publication of both the Code and the report, has been to promote the UK as a global location for the development of these technologies, highlighting the fact that, unlike some countries, the current legislative regime in the UK allows for these vehicles to be legally tested on public roads providing that appropriate insurance is arranged and a test-driver is present in the vehicle.

The DfT’s summary report makes clear that the principles governing liability and the regulations governing the maintenance and use of vehicles need to be reviewed and amended before the everyday use of driverless vehicles can be implemented.

This review is expected to be completed by summer 2017, although whether this time table is adhered to in light of recent political developments remains to be seen.

The nature of the analysis and review required will dictate that insurers and defendant lawyers will be closely involved and will play a key role in defining this new legal landscape.

However, it is vital that Claimant lawyers engage with the issues that arise to ensure the interests of the individual are adequately represented.