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Automated vehicles: driving intelligence

Posted: 12/09/2019

In 2016, there were 181,384 road accident casualties reported in the UK with nearly half of fatal accident victims being car occupants. The Royal Society for the Prevention of Accidents identified human error as a key factor in 95% of road accidents, whether this be due to alcohol consumption, inexperience or simply, absentmindedness. Although the Government has adopted measures to tackle drink driving and improve vehicle safety in recent years, could AI operated driverless cars be a more effective solution?

The market for automated vehicles is rapidly growing with substantial research and investment into this innovation. With the value of the UK market for connected and autonomous vehicles expected to rise to £52 billion by 2035, it is no surprise that new legislation is emerging to better regulate the industry and position the UK to be a leader in this growing technology sector.

Autonomous or automated vehicles are essentially driverless cars that can range from being highly automated, where the driver remains alert and somewhat in control, to fully-automated where the driver is merely a passenger. Intelligence in this area is clearly developing quickly with driver assistance technology regarded as standard in vehicles nowadays and expectations for fully self-driving cars to be on roads in the UK by 2021.

The recent implementation of the Automated and Electric Vehicles 2018 (AEV 2018) and the Law Commission’s preliminary consultation into this area are just some of the steps that the UK is taking to prepare for what Jesse Norman, former Transport Minister, described last year as the ‘the biggest transport revolution in a century’.

Primary legislation

The Act, which only came into force last year, aims to provide some welcome clarity to consumers, insurers and manufacturers in terms of their liability. It is intended to help smooth the path to compensation for victims of automated vehicle accidents, although it takes a somewhat radical approach by creating a new form of liability which arises directly on insurers. The key points to note are:

  • where an accident is wholly or partly caused by the automated vehicle and it is insured, the insurer will be liable for the damage;
  • where an accident is wholly or partly caused by the automated vehicle and is not insured, the owner will be liable for the damage;
  • once the insurer has settled, the insurer can take action against others, including the manufacturer if they are at fault;
  • scope for contributory negligence;
  • liability can be avoided if prohibited alterations were made to the software or the failure to install safety critical software updates.

Further legislative and regulatory developments are anticipated as the technology is implemented.

The Law Commission’s Consultation

In November 2018, the Law Commission began its three year review of the legal framework for automated vehicles and their use as part of the public transport network. The first consultation focused on civil liability, safety assurance and the need to adapt road rules. An analysis of the responses from consultees was published in June 2019.

Civil liability

The current framework, AEV 2018, is deemed as generally satisfactory by the Law Commission, but it was suggested that further clarification may be needed on aspects relating to the effect of contributory negligence, the meaning of an accident ‘caused by’ an automated vehicle, and the need to retain data.

The Act allows for damages to be reduced in some situations under the Law Reform (Contributory Negligence) Act 1945, but the Commission expressed concern that the Act’s approach was rather complex. The majority of respondents felt that although the issue could be articulated more simply, the intent was essentially clear and so reform was not urgent.

In terms of causation, the Act provides that the accident must be ‘caused by’ the autonomous vehicle, but otherwise is to be interpreted at the court’s discretion. Respondents were split on whether further guidance was needed with insurers in particular expressing that clearer definitions would ensure certainty and ease the legal process. Nevertheless, consultees were in agreement that the issue should be reassessed in the future, after some practical experience.

Unsurprisingly, the main area of concern was around the retention of data and its use to report accidents and allow insurers to respond to claims. Under the AEV 2018, normal limitation periods will apply. This would require data relating to any incidents to be retained for at least three years to allow claimants to make a claim. Whilst a change to the limitation period was unpopular among respondents, so too was the suggestion of indefinite retention of data. The concept of automatic reporting, however, garnered more support, but consultees felt that the public would still need to be encouraged to directly report any incidents to the police and their insurers.

It was also suggested that all automated driving systems (ADSs) should be backed by an entity, such as the developer or manufacturer, which would be held responsible for the safety of the system. The entity would then be subject to regulatory sanctions, including improvement notices, fines and withdrawal of approval. There was a view among respondents that the law on corporate criminal offences where a faulty ADS has resulted in death or serious injury is inadequate and in need of review; the Law Commission expressed that this should look beyond manslaughter and homicide to include health and safety and product safety regulations.

Safety assurance scheme

The feedback to the consultation showed backing for the establishment of a safety assurance scheme to support the AEV 2018 and complement the current system of international type approval. It was proposed that the scheme should be run by an existing agency, namely the DVSA or VCA, and that it should cover issues such as driver training, software updates and the management of data which would require attention after the deployment of highly automated driving systems. The expectation is that such a scheme will not only ensure safety, but also help with public confidence.

Adapting road rules

The final aspect of the consultation considered the need to adapt road rules to accommodate automated vehicles. It was considered that a collaboration between regulators and developers to create a precise digital highway code would be best, provided that it was flexible enough to be amended in the face of unpredictable scenarios in the future. Such a code should address issues such as interacting with vulnerable road users, dealing with adverse weather conditions and speed limits.

The second and third Law Commission consultations in this area will consider the regulation of automated vehicles in the context of the public transport network before going on to formulate overarching proposals based on the information gained from these previous reports.

Further legislation and reviews will undoubtedly continue to emerge as the industry expands and new challenges appear, particularly in relation to cyber security and the need to maintain connectivity. However, with the UK tech sector attracting the most capital investment in Europe in 2018, there is arguably an expectation that robust regulations will be implemented with relative speed and ease.

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Penningtons Manches Cooper LLP