Caroline Coates heads the automotive sector group for UK-based law firm DWF. She is also executive partner of the firm’s Birmingham office.
RLJ: How do you think that the complicated liability issue on driverless cars will develop, be discussed and eventually be resolved?
At DWF, these are questions that we have been discussing and debating with clients for over 18 months, particularly regarding the impact on motor manufacturers and the insurance industry. We anticipate a shift from risk based on the characteristics of the driver (such as age, driving record, and location) to risk based on the characteristics of the vehicle. Essentially this is a shift away from personal liability of the driver (to which a motor policy responds) towards issues of product liability. The issue of changing models of ownership of cars will have an impact – increased subscription or shared ownership services, point-of-use schemes such that the insurance is likely to be bundled with the car.
In terms of liability in the event of a collision, for the moment, the question still remains: what did the driver of the vehicle do or fail to do – such as turning without indicating? In the longer term, where all vehicles are driverless, the likelihood of accidents will be much reduced and the failings of a particular vehicle or its operating systems may be an issue for the two vehicles’ motor manufacturers. It is in the medium term that particular challenges are likely to arise where there are multiple types of vehicles with different levels of advanced driving assistance systems (ADAS) all sharing the same road space. Liability may be more difficult to determine at that stage although the data recorded should assist in apportioning fault.
These are issues that both the UK government and the insurance industry – as well as the manufacturers – are aware of and starting to discuss now.
Do transport policymakers and regulators need to review current rules? Do you agree with the OECD that cities which do not rethink rules over taxis and public transport could find themselves mired in litigation (as Uber is, arguably, already showing us)?
The Pathway to Driverless Cars and Code of Practice published in 2015 by the UK DofT [Department of Transport] has set out the UK government’s stall to review legislation by 2017 concerning the use of driverless cars on the road (and to review liability). Further, by 2018 to start to look at international standards. There is much debate about what regulation is necessary and whether existing regulation of cars on the road is adequate.
We have a history in the UK of specifying in our legislation what is not allowed – rather than stating positively what citizens are entitled to do. It is likely that regulation on the increasing use of technology will follow this pattern, i.e. gradual introduction of new legislation or amendments of existing regulation to cope with the challenges presented.
The interaction between private and public transport in urban environments in the future is particularly interesting and certainly, together with motorways, is where we are likely to see autonomous vehicles being adopted first. Mass people transit is likely to remain as the way of bringing people into a city – and then dispersed to their end destination by 1 or 2 people vehicles. Whether that is by hire vehicle, “autovot” or “taxibot” remains to be seen and, of course, each city will have different constraints and demand. Overarching regulation by national government (in the UK at least) is likely to set the framework for how these systems coincide with local practice developing within that framework.
Clearly the opportunities that this presents must be on cities’ radar – such as freeing up parking spaces, reducing congestion. However, the challenges are very real: a reduction in income from parking, local policy on the infrastructure required to support these developments and cyber security.
What is the likelihood of human rights actions being taken if people feel they are being deprived of using driverless cars – for example, a disabled person who would not be able to use a traditional car?
At present, human rights legislation does not provide that all people are equally entitled to use of a vehicle and it is hard to see that principle altering with the advent of the driverless car. What is likely is that the combination of the technology and shared ownership or car on demand services will bring accessibility to autonomous vehicles to a much greater percentage of the population including disabled users and the elderly – not least due to affordability compared with current adapted vehicles.
What do you see as the wider effects of this increasing level of automation, which will be felt across different parts of society and create commercial opportunities for many different industries?
The use of vehicles on the road is embedded as part of almost every business from manufacturing, logistics, and retail to professional services that provide advice. The impact on society is an interesting debate – will people adopt this technology or will there be resistance?
Picking up on the themes outlined above, the way in which we use our cities is likely to change – a reduction in congestion and parked vehicles will open up swathes of city road space to use in other ways, whether that is leisure, retail or simply open public spaces. For many businesses, particularly retailers, the impact on their supply and distribution chain from automated warehousing to autonomous haulage to interaction with customers will be significant.
On a different note, the data that is collected by the autonomous vehicle presents commercial opportunities as more and more is known about the driver/user and their lifestyle and habits. Personalised advertising of retail, refreshment opportunities will increase. Further, with all that time freed up for the occupants of the vehicle during the journey, we should see productivity increase (although they could spend it shopping online).
What kind of issues do you expect to be advising the manufacturing sector on in this area?
In terms of the car manufacturers, as mentioned at the beginning, there are likely to be issues of product liability. Added to that the contractual relationship between the manufacturer and the software supplier – who designs and/or is responsible for which parts of the vehicle?
As you would expect, there is a need to protect innovation through patents and subsequently challenging threats to intellectual property.
Risk management of the supply chain will be at the forefront building on recent problems and the degree to which manufacturers are reliant on a supply chain stretched globally, where not all countries are adopting the same level of autonomous vehicles.
We will be guiding clients through changes to international standards and ensuring compliance with regulation. This is particularly relevant to issues surrounding cyber security.
Lastly, where adoption of new technologies is supported by government/ EU funding, we will be advising on issues arising out of provision of state aid.
What kind of issues would you expect to be advising government and regulators on in this area?
At this stage our role is advising clients other than national government and regulators. That said we believe that our expertise, particularly on the liability issues, can assist.
Will driverless cars increase the role of regulators (or not)? If so, should we be concerned that regulators do not have a good record on keeping up with technology?
Where the UK government has set out its stall that the UK should be an environment where this technology is encouraged to develop, it is to be hoped that the regulatory aspects do not stand in the way. The Pathway to Driverless Cars and the creation of C-CAV (the Centre for Connected and Autonomous Vehicles) suggest a real commitment to making this work.
On development of regulation to “cope” with this technology, what we would not want to see is creation of burdensome regulation, at an early stage, that would stifle innovation and may prove not to be fit for purpose. Let the technology mature before we try and regulate for every eventuality.
Anything else you would like to say?
One of the aspects of truly driverless cars is that the route they select and the movement of the car on the road is rules based. What those rules are and how they are applied in different scenarios is an area of concern. Is it right that the software developer decides whether, in the event of a potential collision, to direct the car to crash into a wall thus injuring the driver/user or to direct it to run into the queue of pedestrians injuring multiple people? This looks like a question for an elected government to debate – and not a commercial software company.
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