Vin chaud anyone?

By the time this goes to print, annoyingly if it is raining where you are, I am hoping to be on the slopes in glorious Alpine sunshine. That presupposes that I make it there in one piece. I will be flying with one of the low cost airlines, with an excellent track record for safety I am relieved to say. I am not the world's most enthusiastic flyer following a difficult incident a few years back on approach to Turin when air crew fell over and food went flying. You can imagine that that experience did nothing to reassure passengers on aviation safety.

One of the ironies of my forthcoming trip to the Alps is that I have not given a second thought to the fact that for large parts of the journey a computer will be flying the plane, not the pilot or co-pilot who, with advancing years one tends to glimpse at when boarding to reassure yourself that they have a sufficient amount of grey hair and lots of gold braid. I have the former, not the latter, so I am not allowed to fly planes.

On return from a recent business trip to Moscow, I was conscious that the pilot was having an extended break in the main cabin chatting to the air stewardesses. It did not cross my mind that he had either left his co-pilot or a computer to do the flying. This laissez faire attitude contrasts however with the public's attitude to driverless cars which are a hot topic just now. We have real life trials in some cities, and, I learnt recently, on a university campus. Presumably students are dispensable. Vox pops on the news suggest that the public are rather more dubious about driverless cars than auto-pilot. Quite irrational since the damage that could be done by a driverless car is far less catastrophic than a problem with a plane.

There are calls for clarification on the regulatory regime that will surround driverless cars and the government is looking at the area. In a recent report it concluded that the current vehicle liability regime is adequate but should be kept under review. It looks like the 'driver' will remain responsible for the conduct of it but that manufacturers will continue to have strict liability for car technology. Drivers will still need to wear seatbelts. Interesting questions will arise when accidents happen. Whose fault will that have been? The driver's or the vehicle manufacturer's? Whilst similar issues arise just now where car technology is at fault, 94% of accidents actually involve human error. With driverless cars, the scope for human error should reduce. Logic tells you that accident litigation will become more complex though as the driver will argue that the vehicle ought to have avoided the collision. Investigating whether that is a legitimate argument will involve an analysis of computer memory or suchlike. Expert evidence will be needed.

In my day to day practice, which for the last two decades has rarely been without significant aviation accident litigation, there is usually an argument that a component part has been at fault. We can anticipate that the future for road accident litigation is also likely to involve more of these product liability arguments that my team handles for various industries and less focus on driver error.

All of this brings me back to my holiday. If I return from the Alps in plaster, it will be nothing to do skier error or too much vin chaud. I will be pointing the finger at the folk who made my ski bindings....

Ewan McIntyre is a partner of law firm Burness Paull LLP