The recently published joint report of the Law Commission of England and Wales and the Scottish Law Commission addresses some of the legal questions concerning the introduction of driverless cars onto British roads. The report proposes an “Automated Vehicles Act” to ensure there are adequate regulations governing such vehicles, meaning those “capable of driving themselves without being controlled or monitored by an individual for at least part of a journey.” Some of the key recommendations of the report include:

• A clear distinction needs to be drawn between features which just assist drivers (eg adaptive cruise control) and those that can be considered as self-driving.
• When a car is authorised by a regulatory agency as having “self-driving features”, the human driver will not be responsible for how the car drives while the features are actively engaged. 
• The company or body that obtained the authorisation for the self-driving features would face regulatory sanctions if anything goes wrong while these features are actively engaged.
• Driver assistance features (ie those which are not actually “self driving”) should not be marketed as self-driving, in order to minimise the risk of collisions caused by drivers who mistakenly believe their vehicle is self-driving.

Commenting on the publication of the joint report, Nicholas Paines QC, Public Law Commissioner said:

“We have an unprecedented opportunity to promote public acceptance of automated vehicles with our recommendations on safety assurance and clarify legal liability. We can also make sure accessibility, especially for older and disabled people, is prioritised from the outset.”

I asked Matthew Claxson, partner at Moore Barlow, to consider the implications of the report, particularly with regards to potential victims of road traffic accidents which have been caused by a driverless car.

What is the scale of the report?

MC: The report is comprehensive, seeming to identify many of the issues raised over the past ten years around automated vehicles (AVs) and offering recommendations. The adequacy and effectiveness of those recommendations, should they be adopted, will remain to be tested.

How will road users adapt to driverless cars?

Whilst it is fair to say that there is increased public awareness of automated vehicles compared to ten years ago, it still remains the case that automated vehicles are not commonplace on UK roads despite testing in certain areas of the country. Paragraph 3.29 of the summary report refers to “communicating with users” which focuses on the users within the automated vehicle and not outwith. It is realistic that society will go through a period of time when our roads are shared by both automated vehicles, conventional vehicles and a hybrid of the two (plus of course pedestrians/cyclists/e-scooters and so on). I would invite awareness of automated vehicles to be introduced within the Highway Code so that, irrespective of your preferred mode of transport, you have some awareness of automated vehicles. This would also seem to fit with the changes made to the Highway Code in January 2022 that introduced a “hierarchy of road user” emphasising more awareness.

What will be the effect of introducing an Automated Vehicles Act?

The introduction of a new Automated Vehicles Act (para 1.4) would be practical in drawing together the responsibilities of those involved in the manufacture, operation and maintenance of AVs.  Indeed, the proposal sets out the responsibilities of the various “actors”.  That said, from a victim perspective there should be a straightforward approach to redress. This is touched upon at 1.12 (4) adopting the provisions of the Automated and Electric Vehicles Act 2018 in terms of strict liability that should apply if injury/damage is caused by an AV. The proposal also goes on to address the “transition” between a vehicle going from automated to user driven where strict liability no longer applies (returning to the current position of driver conduct). This distinction is important which dovetails back to 3.29 over the public awareness of what will be their responsibilities when in an AV and their understanding of responsibility at the point the vehicle stops being an AV.

What are the implications for victims of road traffic accidents?

The paper proposes that whilst a vehicle is in the AV “mode” any criminal infringement should not be attributable to an occupier of the vehicle who has no control. Victims of a road crash are entitled to expect the person who caused them harm to be punished, which raises the question as to whether the public would accept that their injury or bereavement would simply be put down to a “learning” experience for the computer. That said, the paper does give some consideration to address this under section 5 “Duty of Candour” whereby if a company or senior manager causes or fails to prevent an incident then that can lead to corporate as well as personal criminal liability – thereby shifting the victims focus from the occupier of the vehicle to the company. This would need to be very carefully managed to ensure that the public retain confidence in the criminal justice system and our justice system does not simply get overrun by “big business”.

What will happen to motor insurance?

The question of insurance is a key issue for victims of road crashes because, under the current system, it is insurance policies that fund the rehabilitation and compensation for those who have been seriously injured or bereaved by a road crash. The paper, in my view, is a little thin on this issue. At paragraph 6.14 there is reference to the company having insurance in place whilst the vehicle is deemed to be in AV mode, but once out of that mode it seems to suggest the driver would need their own insurance. This seems impractical; instead I would suggest a single policy of insurance that covers a vehicle (irrespective of who is driving) whilst in AV mode and conventional driving, because to do otherwise could lead to potential disputes between which insurer should pay out, resulting in delays for the victim. A key provision is the recommendation that there continues to be a fund of last resort – currently the Motor Insurers’ Bureau (MIB) – for those without insurance who cause a road crash. This is important because it affords the victim security of knowledge that, should there be no insurance policy, there is still a fund available. It also presents the MIB opportunity to “police” the insurance marketplace around AVs to ensure good behaviour amongst insurance members, because it will be in the MIB interest to do so as a fund of last resort.

Could there be any problems regarding limitation periods for personal injury claims?

Data retention is referenced at paragraph 6.23 where it is proposed that data is retained for three years and three months. This seems to be premised on the fact that a personal injury claim is typically brought within three years of the incident date. This proposal does not take into account injury to children who have three years from their 18th birthday (age 21) to bring a personal injury claim – therefore children could be disadvantaged. I would like to know more about why data cannot be held for longer than the proposed period because, at present, most legal and financial organisations retain their files digitally for many years longer than the proposal.

What are the issues regarding investigation of crashes?

At para 3.32, there is a recommendation for incidents involving an AV to be investigated by the Road Accident Investigation Branch (RAIB) which I think, in principle, is a very good idea – because having a single organisation investigating collisions enables a wealth of expertise to be collated, trends to be identified and enforcement to be taken. However, the RAIB should remain a function of the police and not separate from the police.

Any further thoughts?

In summary, the report is very thorough, with clear ambitions which seek to address the previous issues raised. But there are competing interests to engage those who manufacture/operate the AV and then have a simple solution available for those injured or bereaved as a result of a road crash. The proposal is likely to work well for fleet operated vehicles but it is unclear how, in practice, you would ensure individual owned vehicles would comply with the requirements or, indeed, those vehicles that are sold on from the original owner – unless you incorporate the recommendations into an annual MOT which would tick the AV requirements.

Matthew Claxson is a partner at Moore Barlow. He specialises in accessing rehabilitation for those who have suffered serious injury and representing at inquest those who have been bereaved. Email matthew.claxson@moorebarlow.com. Twitter @matthewclaxson.

Photo by Nico Callens on Pixabay.