FREE BOOK CHAPTER: Current Vehicles, Current Law (From 'The Law of Driverless Cars: An Introduction' by Alex Glassbrook)
28/02/17. Chapter One from the UK's first book on the law of driverless cars.
Motor vehicles are now almost always under the control of a human driver when in motion. The current exceptions are devices like cruise control and parking assist, which temporarily take control of one or more functions of the vehicle. But the driver must be able to take control of the vehicle while those functions are in use.
Disputes arise mainly from collisions involving vehicles, though there are other litigious situations.
Insurance for road vehicles became compulsory when parliament made it so, because of the quantity of road traffic accidents causing injuries. Drivers are still required to be insured against third party injury and losses. The motor insurance industry also provides cover, on a voluntary basis through the Motor Insurer’s Bureau, for third parties injured by uninsured and untraced drivers.
Several types of prototype driverless vehicles are being tested in some parts of the UK. Insurance for prototype vehicles has been issued.
TOPICS IN THIS CHAPTER
This chapter sets out:
- the main legal obligations in the UK relating to road traffic and to prototype driverless vehicles being tested in the UK
- the most common legal disputes.
- the current insurance regime for road traffic, in outline
OBJECTIVES OF THIS CHAPTER
The objectives of this chapter are to familiarise the reader with:
- the current litigation landscape of road traffic, under human control
- the current insurance regime, and
- the law as it relates to prototype driverless vehicles now being tested on British roads
and to set the context for the discussion of likely changes in the law, to accommodate driverless vehicles (the subject of Chapter 2).
1. MAIN LEGAL OBLIGATIONS
I deal only with the main legal obligations relating to driven vehicles (to set the scene for considering, in the following chapter, the likely alterations in relation to driverless cars). What follows is not an exhaustive list of legal obligations in relation to cars. For such information I would refer the reader to more detailed works1.
I set out some of the terms to categorise the legal obligations:
- “International law” refers to rules agreed between countries including the UK.
- “Regulatory law” describes rules made by the British state (often by secondary legislation – a statutory instrument – made in accordance with powers provided by statute, ie. an Act of parliament; sometimes directly by statute). For example: regulations in relation to the structural requirements for vehicles. The insurer’s statutory duty (directly under the Road Traffic Act 1988) to satisfy a judgment obtained against a driver – the “compulsory insurance” provisions, leading to the description of the insurer as “Road Traffic Act insurer” – I also place into this category.
- “Criminal law” to describe conduct which parliament has prescribed as punishable by criminal penalty (including endorsement of driving licence, fine, imprisonment), eg. speeding or careless or dangerous driving.
- “Private law” to describe the relationships between private individuals, which would include the relationship between a manufacturer and a purchaser of a car. Private law “remedies” would include, eg. the ability of a customer to sue a manufacturer for damages for breach of contract, if she was sold a defective vehicle.
Standards for vehicles are set primarily by international agreement.
The United Nations Convention on Road Traffic 1968 (The Vienna Convention) contains detailed rules concerning the design of road vehicles. In the UK, the Road Vehicles (Construction and Use) Regulations 1986, made under section 41 of the Road Traffic Act 1988 and enacting EU law within the UK, also deal with the detailed requirements of vehicles.
The main principle, which runs through the Convention (subject to some exemptions – set out below) is that a moving vehicle must always be under the control of a driver who is both capable and qualified to control it. That principle is of obvious relevance to the prospect of “driverless” vehicles.
Article 8 provides that every moving vehicle or combination of vehicles shall have a driver, who shall:
- possess the necessary physical and mental ability to drive
- be in a fit physical and mental condition to drive
- have (unless he is a learner driver practising driving) the knowledge and skill necessary for driving the vehicle
- at all times be able to control his vehicle
In April 2014, Article 8 was amended as follows:
“5bis. Vehicle systems which influence the way vehicles are driven shall be deemed to be in conformity with paragraph 5 of this Article and with paragraph 1 of Article 13, when they are in conformity with the conditions of construction, fitting and utilization according to international legal instruments concerning wheeled vehicles, equipment and parts which can be fitted and/or be used on wheeled vehicles”
– which is to say that automated systems are permitted, if they comply with the 1968 Convention. But if they do not:
“Vehicle systems which influence the way vehicles are driven and are not in conformity with the aforementioned conditions of construction, fitting and utilization, shall be deemed to be in conformity with paragraph 5 of this Article and with paragraph 1 of Article 13, when such systems can be overridden or switched off by the driver.”
So, the amended version of the 1968 Convention allows autonomy, but only if there is always a driver in the car who can “override or switch off” the autonomous systems (note the plural – all of those systems). So the 2014 amendment foresees a switch that turns the car (presumably instantly) back into a driven car.
Article 13 of the 1968 Convention provides that:
“Every driver of a vehicle shall in all circumstances have his vehicle under control so as to be able to exercise due and proper care and to be at all times in a position to perform all manoeuvres required of him. He shall, when adjusting the speed of his vehicle, pay constant regard to the circumstances ...”
Article 41 provides that the driver must hold a permit (ie. be qualified to drive, having passed a test set by a competent public authority).
Annex 5 (“Technical conditions concerning motor vehicles and trailers”) provides that:
“46. Every motor vehicle shall be equipped with a strong steering mechanism which will allow the driver to change the direction of the vehicle, easily, quickly and surely”
Annex 5 also provides a list of exemptions to the Technical requirements for vehicles:
“60. For domestic purposes, Contracting Parties may grant exemptions from the provisions of this Annex in respect of:
(a) Motor vehicles and trailers which, by virtue of their design, cannot exceed a speed of 30 km (19 miles) per hour on a level road of whose speed is limited by domestic legislation to 30 km per hour;
(b) Invalid carriages, i.e. small motor vehicles specially designed and constructed - and not merely adapted - for use by a person suffering from some physical defect or disability and normally used by that person only;
(c) Vehicles used for experiments whose purpose is to keep up with technical progress and improve road safety;
(d) Vehicles of a special form or type, or which are used for particular purposes under special conditions;
(e) Vehicles adapted for use by handicapped persons.”
It is clear (from the 2014 amendment) that none of those exemptions (from the original 1968 convention) remove the need for a driver, because the 2014 amendment expressly provides that “Vehicle systems which influence the way vehicles are driven”, ie. any sort of automated system, must be capable of being “overridden or switched off by the driver”.
The UK signed the Vienna Convention but has not ratified it, so is not legally bound by it. It is, however, obliged not to act in a way that would defeat or undermine the treaty’s objective and purpose. The Vienna Convention describes the desire of the contracting parties “to facilitate international road traffic and to increase road safety through the adoption of uniform traffic rules”.
It is arguable that the introduction of driverless cars to the UK, without prior agreement of uniform rules relating to such cars (and, consequently, wholesale reform of the Vienna Convention to remove or amend the “driver” requirement) might put the UK in a position of undermining the Vienna Convention, in which case the Convention would need to be amended to allow fully driverless cars to be used in the UK.
Regulation 104 of the Road Vehicles (Construction and Use) Regulations 1986 makes the legal requirement for a human driver in the UK clear:
“No person shall drive or cause or permit any other person to drive, a motor vehicle on a road if he is in such a position that he cannot have proper control of the vehicle or have a full view of the road and traffic ahead.”
The current position, therefore, appears to be that vehicles can, at most, be only partially autonomous. A qualified driver must be able at any time to deactivate the autonomous driving system and take control of the car – by steering and bringing it safely to a halt.
The decision of a certain car manufacturer outside the UK to retain steering wheels in its autonomous vehicles therefore follows the Vienna Convention.
The British government takes the position that the need for a further change in the Convention to allow automated vehicles on the roads is “arguable” and that the Convention “is not considered an obstacle in the UK. The UK has signed but not ratified the convention and testing is consistent with proper driver control”2
It is not clear whether the UK would resist the Convention solely on the basis of its non-ratification, should the technology reach such a high standard that fully driverless cars, ie. lacking the need for a qualified driver to override the system, become available.
The likelihood is that such technology (and the consequent redundancy of the human driver) would lead to the amendment of the Convention and of the British Construction & Use Regulations. That might be some time away.
Testing of Prototype Autonomous Vehicles in the UK
The British government’s position is that existing regulation allows testing of prototype vehicles on public roads in the UK, “providing a test driver is present and takes responsibility for the safe operation of the vehicle”3.
That is consistent with the Vienna Convention. It does not deal with the possibility of “driverless” vehicles, however. At some stage – if and when the technology reaches that stage – that question will need to be addressed.
For the time-being, the human driver remains very active. Which brings us to:
The Domestic law of driving
Drivers owe obligations to:
- the individuals around them (passengers, other drivers, pedestrians and others) to take reasonable care for their safety and
- society at large, not to contravene the criminal laws relating to driving.
Those obligations are carried into effect by the civil law of negligence (which allows for awards of compensation against a driver for any injury or loss proved to have been caused by his negligent driving) and by the criminal law (which provides for criminal sentences – including fines and imprisonment, for driving contravening the standards of the criminal law).
To give just a few examples, it is an offence to:
- drive carelessly
- drive dangerously
- drive at a speed exceeding the legal limit
- drive whilst under the influence of drink or drugs
- use a car on a public road without a policy of insurance in force
All of those offences exist because a human driver controls a car and because loss of control is likely to involve significant threat to the safety of others.
A culpable loss of control is therefore deemed so serious as to constitute criminal behaviour – even if the culpability is careless rather than intentional. A failure to insure (ie. the driver’s failure to insure others against the consequences of his carelessness) is also a criminal offence.
The standard to which the prosecution must prove that the driver of a car committed all the elements of a criminal offence is “beyond a reasonable doubt”, ie. to make the magistrate or jury (whichever might be the finder of fact) sure, beyond a reasonable doubt, that the offence was committed. “Beyond a reasonable doubt” is termed “the criminal standard of proof”.
Private Law Obligations on Driver – civil law
The civil law provides a remedy in damages (compensation) for any personal injury or damage to property caused by a driver’s failure to take reasonable care for the safety of anyone reasonably foreseeably affected by such failure (which amounts, in practical terms, to anyone in his vicinity – passengers, pedestrians et al).
Such failure to take reasonable care is termed “negligence”.
Unless the driver admits negligence, the injured party must prove the driver’s negligence (as well as the fact and extent of any damage, and that it was caused by the negligence) on “the balance of probabilities”, which is known as “the civil standard of proof”.
The “balance of probabilities” means that a party (the claimant) must prove his case to more than 50% of likelihood. If the allegedly negligent driver’s (the defendant’s) case is just as likely as the claimant’s, the claim will fail, “for want of proof”, because the balance of probabilities is not tilted in the claimant’s favour.
However, if the claimant persuades the court (a District Judge or Circuit Judge of the County Court, or a judge of the High Court in more serious cases) that his case is more likely than the defendant’s case – even just 1% more likely – then the claim will succeed. For that reason, the “balance of probabilities” standard of proof is expressed as being a likelihood of at least 51%.
Obligations of Third Parties to the driver (pedestrians, cyclists, etc)
The term “Third Party” is distinct from the parties to the insurance contract: the insured driver (first party) and motor insurer (second party).
Third parties also owe duties to the driver.
A list of all possible third parties would be too long for present purposes. The most common third parties in an RTA case are:
- the driver of the other vehicle involved (or motorcyclist) or
- an injured non-driver (pedestrian, cyclist etc)
Drivers and motorcyclists have the same duties in common: those prescribed by penalties under the criminal law and the private law duty (chiefly in negligence) owed to those reasonably foreseeably affected by their acts or omissions.
Cyclists are subject to similar criminal offences (careless and dangerous cycling, cycling under the influence of drink or drugs – plus cycling on the pavement). They are also subject to the civil law duties, chiefly the duty of care in negligence
An allegation of negligence is often countered by an allegation of contributory negligence, ie. that the injured party also failed to take care of himself.
The effect of such a finding is to reduce the injured party’s damages by a percentage representing the extent of his fault and its causative effect.
Obligations of Manufacturer of Vehicle
Manufacturers might be held liable, under civil law, in damages for any defects in their vehicle:
- to the purchaser, under the law of contract, and
- to others affected by the defect (eg. passengers or other third parties injured by such defect) in the law of negligence or product liability.
These causes of action will be considered in further detail as we consider the features of driverless cars.
Obligations of Repairers of Vehicles
Repairers will owe duties pursuant to the law of contract, to provide a service in accordance with the terms of the contract. A defective service will expose them to an action for damages.
Obligations of Commercial Operators using vehicles – Employers, Providers of Public Transport etc
Employers and public transport companies owe duties of care to those using their vehicles – whether their employees (to whom the employer owes duties of care including the duty to provide safe work equipment) or passengers (to whom duties are owed just as a passenger in a private car is owed a duty – save that the duty arises not only in negligence but also in contract in the paying passenger’s case).
2. MOST COMMON DISPUTES
The landscape is dominated by the law of negligence, which governs cases involving road traffic collisions. Other areas of law can apply (eg. the law of nuisance, if, for example, a load falls from a vehicle and obstructs the highway). But the law of negligence dominates.
The following types of claim dominate the road traffic litigation landscape now:
road traffic collisions (damages actions, for personal injuries, property damage and/or accident management charges such as hire costs)
Insurance disputes (eg. as to coverage where there is a collision, including fraudulent claims against insurers and compensation under the Motor Insurers Bureau scheme)
Those are the main features. Other civil law disputes that might arise from road traffic include:
- consumer disputes (eg. product quality or liability disputes between customers and manufacturers, services disputes between customers and repairers, consumer credit disputes between consumers and financiers)
- Disputes as to the state of the highway (eg. actions under the Highway Act, nuisance by eg. obstruction of the highway)
Of the various types of claim, road traffic collision claims dominate. These result from the unreliability of human decision-making when driving at speed. Consequently, such cases are fought almost entirely in the law of negligence – the law of carelessness.
3. CURRENT MOTOR INSURANCE
Human decision-making when driving has been proved to be so unreliable and dangerous as to persuade lawmakers to impose a compulsory system of insurance, supported by (under the threat of legislation) voluntary agreements between motor insurers to compensate those injured by uninsured as well as untraced drivers4.
So, in the UK, motor insurance has evolved to provide a sequence of safety nets, on the assumption that the negligently-injured “third party” wishing to claim damages will (provided he complies with rules as to issuing his claim or notifying the MIB in time) be compensated by one of the several insurance schemes. Hence “compulsory third party insurance”.
There are economies and advantages to such a system – both for insurers and for injured third parties. At the time of writing (though possibly not post-Brexit5), injured motorists can elect to sue the motor insurer of a negligent driver, instead of the driver himself6. And (a possible casualty of Brexit) that right to sue can cross European borders, allowing European drivers to be sued in the EU state in which the injured person lives7.
A motor insurer, even if not sued directly in its own name under the 2002 EC Regulations, has and usually exercises a contractual right to conduct the defence of a claim made against its insured driver, on his behalf, because it bears the financial risk of the defence failing. The court recognises the insurer’s financial interest in the claim, eg. by the principle of subrogation (allowing the insurer to claim its expenditure in the insured’s name) and by the insurer’s right to be added as a defendant to a claim, should it wish, to guard its financial interest8.
Court procedure recognises the insurer’s role. For example, the court protocols, by which the court encourages and may enforce efficient pre-claim conduct by the parties, include a protocol specific to low value personal injury claims in road traffic accidents. That protocol provides a form that must be sent to the defendant’s motor insurer9. The claim then moves through closely-defined stages. The recovery of fixed amounts of costs is provided for by set formulae.
And the system of costs in personal injury claims is now subject to a system proposed by insurers as an economic response to the elevation of inter-party costs orders in injury cases by lucrative “no win, no fee” agreements (now outlawed).
Under the current system motor insurers pay the “base” (meaning, in this sense, the un-enhanced) costs of almost all claims, irrespective of the outcome of a case, unless a few narrow exceptions (eg. the insurer had previously offered a better deal than the injured party obtained at trial, or that the claim is in some sense improper, eg. by fundamental dishonesty).
That system (known by the technical label “qualified one-way costs shifting”, or “QoCs”) was seen by insurers as an acceptable price for the extinction of inflated “uplifts” of costs for winning claimants in “no win, no fee” agreement personal injury cases. Those uplifts had often resulted in the doubling of the bill to defendant’s insurers for lawyers’ time costs.
So the present system of compensation for road traffic injuries – and thereby the law of road traffic – is underpinned and shaped by insurance.
The compulsory nature of motor insurance is both a source of revenue for insurers and a source of considerable expenditure – not least due to the level of exposure to fraudulent collision claims for personal injury compensation.
The law and the litigation landscape have been shaped entirely by the human driver’s control of cars. That is the source of almost all law and of the major part of claims made in relation to road vehicles.
If driverless cars arrive on our roads, they will alter the landscape in almost every foreseeable aspect. We shall glimpse that new world in the next chapter.
1Eg. Bingham & Berrymans’ Personal Injury and Motor Claims Cases (Lexis Nexis, 14th edition, 2014), The Law of Motor Insurance (Robert Merkin, Jeremy Stuart-Smith, Sweet & Maxwell, 2nd edition, 2015), Encyclopedia of Road Traffic Law and Practice (Robert Ward, updated periodically, Sweet & Maxwell).
2“The Pathway to Driverless Cars: Summary report and action plan” (UK Department of Transport, February 2015) p.20, para.3.4.
3Dept of Transport Feb 2015 paper (above) at page 20, para.4.6.
5Britain’s exit from the European Union as a result of the referendum of 23 June 2016: in process at the time of writing.
6See the European Communities (Rights Against Insurers) Regulations 2002, SI 2002/3061
7An Odenbreit action, under the Court of Justice of the European Union (CJEU)’s judgment in Schadeverzekeringen NV v Odenbreit (Case C-463/06)  ECR I-11321
8Gurtner v Circuit  2 QB 587
9See the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents.