22 May 2023

The new autonomous future


I read the exciting news last week that Stagecoach had introduced a “driverless bus” on a 14-mile route from Ferrytoll ‘Park and Ride’ in Fife to the Edinburgh Park Train and Tram interchange.

Journalists from across the UK had been invited to a press day ahead of the service commencing; however, the “driverless bus” claim didn’t quite live up to the hype.

These buses still require a “safety driver,” so the driverless claim isn’t quite what it seems. However, the introduction of this new technology does give rise to an interesting question, “who’s to blame if there’s an accident”.

As a Personal Injury Lawyer representing vulnerable road users, I advance claims on behalf of those who have been injured in road traffic collisions. When acting for my clients, I must consider; how the accident happened, who was at fault or negligent, and did the negligence lead to the injuries sustained. Usually, claims for damages are advanced against the motor insurer for the party at fault.

The burden of proof rests squarely on the shoulders of the claimant or Pursuer. Forensic investigation of the evidence surrounding the accident is crucial when considering the extent of the negligence of the “at fault” party. To successfully bring a claim for damages, you must prove that; a duty of care was owed, that duty of care has been breached and in breaching that duty of care, it is foreseeable that harm would come to your client.

The standard of proof civil lawyers work to is ‘on the balance of probabilities’. For example, proving that one’s client’s view of how the accident occurred is more likely the correct explanation than the one offered by the other party involved.

But, what happens when a vehicle being driven by something other than a human being is involved in an accident? The above principles, established through centuries of Common Law development, suddenly fall away when you remove the human element.

The Automated and Electric Vehicles Act (2018) provides some clarity on the issue of liability should an autonomous vehicle be involved in an accident. The key provision in the Act is section 2 which states that an insurer will be liable for an accident caused by an autonomous vehicle where it is;
(a) ‘driving itself on a road or other public place in Great Britain’;
(b) ‘insured’; and
(c) an ‘insured person or any other person suffers damage as a result of the accident’.

The act also allows an injured person a direct right of action against the insurer of an automated vehicle.
On reading this provision, it may seem overly burdensome on the insurers of such vehicles. After all, if an accident happens, surely it should be the manufacturer of the vehicle who is to blame? The legislative regime takes account of this as the insurer can pursue the manufacturer of the vehicle for reimbursement or contribution.

Worryingly, however, for an injured party pursuing a potential claim against the insurer of an automated vehicle, there are exclusions on liability in certain circumstances. These are if an accident occurs;
(a) as a direct result of software alterations made by the insured person, or with the insured person’s knowledge, that are prohibited under the policy; and
(b) a failure to install safety-critical software updates that the insured person knows, or reasonably ought to have known, are safety critical.

Questions arise as to how the owners of automated vehicles are to know about the technology in their vehicles, if they are to be notified about the software, what is defined as “safety critical”, and who carries out these updates? These crucial questions remain unanswered.

Certainly, whilst it seems the future is already here, remote driving remains a legal grey area as its neither prohibited nor expressly allowed under current legislation. As the law continues to develop, there will be many more questions to answer and perhaps many novel situations will arise. As is often the case, technology is advancing faster than our laws can keep up and whilst the march to automation has begun in earnest, this Solicitor would rather still just ride his bike to work.

Thomas Mitchell – Associate - RTA LAW LLP


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