Wednesday, 1 November 2017
NEW DRIVERLESS VEHCILES BILL
The House of Commons Public Bill Committee has invited comments on its provisions here: https://www.parliament.uk/business/news/2017/october/have-your-say-on-the-automated-and-electric-vehicles-bill/
There is very little time given in which to respond. Any submission must be received in good time before 16 November 2017.
To access the Bill, click here: https://services.parliament.uk/bills/2017-19/automatedandelectricvehicles.html
Readers can access the House of Commons Briefing Paper (CBP 8118, 20 October 2017) from the link provided at the bottom of the page here: http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-8118#fullreport
This Bill replicates some of the proposals in the Vehicle Technology and Aviation Bill that lapsed with the last government. But there are some differences.
The Briefing is less than candid in its failure to acknowledge that Article 3 of the European Motor Insurance Directive 2009/103/EC already requires member states to ensure that any civil liability resulting from the use of motor vehicles is covered, this includes technical and mechanical defects that are not attributable to the owner, keeper or user’s fault. Whereas section 145 of the Road Traffic Act 1988 wrongly restricts the scope of compulsory insurance to cover the personal liability of the vehicle user; which isn’t the same. A consistent line of European Court of Justice rulings culminating in Damijan Vnuk (Case C-162/13) in 2014 makes this abundantly clear.
Following Farrell 2, see blog, anyone injured or suffering property damage caused not by driver or user error but by a product defect can now sue the Motor Insurer’s Bureau direct, relying on the actual wording of the aforementioned directive.
An important feature of the government’s proposals is to impose what is in effect a strict form of liability on the insurer of the responsible vehicle for any injury or loss caused by that vehicle when used in an automated driving mode.
The key passage here is Clause 2 (1) (a) of the Bill.
‘2. (1) Where
(a) an accident is caused by an automated vehicle when driving itself,
The weasel word that concerns me is ‘caused’. This is a term has a very special significance for tort lawyers and it has resulted in an extensive corpus of case law.
My concern is that to trigger the insurer’s statutory liability under these provisions, a child pedestrian or cyclist, a passenger or other innocent victim seems likely to be required to establish on the balance of probability that the incident was caused or contributed to by the automated vehicle’s systems being in operation. In an ideal world this would be readily established by the on-board computer systems. How easy it will be in practice to access this data or interpret it is an unknown. However there is also an ambiguity in the language used that appears to allow an insurer to argue that the loss or injury was not caused by the automated system.
Access to the civil justice is far from equal. With no public funding of claims, exorbitant court fees and nugatory recoverable fees for most claims and no spare revenues for law firms to risk pro bono work, difficult legal challenges are out of reach for all but the wealthy. Added to this, an ordinary private citizen faces a practically insurmountable inequality of arms if required to contest a highly technical issue with a well-resourced manufacturer or insurer. The last thing we need is any lack of legal certainty.
My strong preference would be for the Bill to be amended to provide in clearer and unequivocal terms that the insurer will be under an absolute liability to compensate whenever an accident results involving a motor vehicle that is set in automated mode. This can still be subject to any other causes that the insurer can establish, such as the driver error of a third party.
I suspect that absolute liability (in the absence of any relevant contributing cause that the insurer can pursue separately) is the Parliamentary intention anyway. However, insurers have a long and successful track record of exploiting any ambiguity in individual claims to avoid their liability and exposure to risk in the wider context of the motor insurance market; as is entirely proper.
The Government has a moral duty to ensure that the public are not exposed to unnecessary danger by the introduction of automated technology. If automated vehicle systems are to be fit for purpose then they must be safe. It is logical therefore to impose absolute liability, in the clearest of terms, for any injury or other loss resulting from the deployment of automated vehicle systems.
Further thought also needs to be given to the standard of care expected of a user when monitoring a vehicle that has been deployed in an automated or driverless mode. Common sense indicates that the same level of alertness cannot be expected.
It seems highly probable that manufacturers and insurers will seek to limit their exposure to claims by specifying detailed provisions and requirements (perhaps unrealistic ones) that most users will never read, still less apply. We must learn the lessons from the naive manner in which compulsory third party motor insurance was introduced in 1930, where insurers issued policies that were so extensively hedged by exclusions and restrictions in cover as to defeat the Parliamentary social policy objective. Further legislation was necessary and even that was fatally compromised, resulting in the immensely complex and in places contradictory case law, well illustrated by Ward LJ's judgment in EUI v Bristol Alliance Limited Partnership in 2012. These problems are the subject of a wide ranging judicial review by road safety charity RoadPeace.
This is also a consumer issue that needs to be properly regulated. Unfortunately, the Department for Transport’s record in this regard is lamentable. Every year, millions of motor policies are issued with numerous restrictions in scope and limitations of liability that are unlawful as under EU law only one exclusion is permitted. The DfT is responsible for regulating every UK motor insurer and has known about these failings for many years but done nothing. In particular, it was warned of this systemic illegality by several law firms practicing in this field in response to its own consultation on the MIB agreements in the spring of 2013.