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Published 4 January 2017
Personal Injury analysis: Olya Melnitchouk, associate at DAC Beachcroft, and Peter Allchorne, partner at the firm, explain how automation technology of self-driving vehicles might affect personal injury law and practice.What are the current trends in terms of personal injury cases involving road traffic accidents and how may developments in vehicle technologies impact this?Notwithstanding continuous improvements in road safety and the advent of driver assistance systems such as autonomous emergency braking in many new vehicles, the frequency of personal injury cases involving minor road traffic accidents remains disproportionately high.The government is currently consulting with industry stakeholders regarding its proposals to address the UK’s compensation culture and, in turn reduce the number of low value claims arising from road traffic accidents by removing the right to damages for minor whiplash injuries or fixing damages at a very low amount. At the same time, it proposes to raise the small claims track limit for RTA claims to £5,000.At the same time, the UK government is investing heavily in the development of new vehicle technologies, culminating in a consultation paper from the Department for Transport earlier in 2016 that will inform the Modern Transport Bill.As an increasing number of new vehicles are factory fitted with ever more advanced technologies, the biggest cause of road traffic accidents—human error—should begin to fall away, positively impacting both the severity and frequency of claims.But pending full automation, consumer education is vital to avoid the occurrence of serious incidents which threaten to undermine public trust and confidence in the use of new vehicle technologies.First, it is important that consumers understand a vehicle with advanced driver assistance systems (ADAS) such as autonomous emergency braking and adaptive cruise control is not a self-driving car, and that the driver must remain in full control of the vehicle at all times. The recent Tesla model S fatality while operating in ‘autopilot’ mode is a sobering reminder of this.Also, alongside the advancements in driver assistance technologies, new vehicles are becoming ever more ‘connected’ with sophisticated infotainment systems enabling vehicle occupants to view social media profiles among other things. This creates a very real risk of driver distraction and disengagement, which could have very major consequences for the driver should an emergency situation arise resulting in a serious or fatal collision. Remember, driver distractions are deemed aggravating factors to be taken into account by a judge when sentencing for causing death by dangerous driving.How drastic would the effect of the introduction of self-driving vehicles be for personal injury law and practice? In what ways would it change things for lawyers and their clients?Ultimately, the introduction of self-driving vehicles will result in a marked downturn in both accident severity and frequency as the human element is removed. But driverless cars will still crash from time to time and when they do, there will be a shift away from principles of motor liability in favour of product liability. In fact, the supply chain in respect of a self-driving vehicle’s automated systems is likely to be complex, consisting of vehicle, systems and software manufacturers.Meanwhile the transition from conventional to self-driving vehicles will be a long one, and it will most likely take decades to reach a point of critical mass. Once self-driving vehicles become a reality, probably early in the next decade, there will still be many more conventional vehicles on Britain’s roads than there will be self-driving ones. Controlled by and subject to the frailties of human beings—the cause of 95% of road accidents, conventional vehicles will continue to crash, both with conventional vehicles, those with driver assistance systems, and with self-driving vehicles.Are there any gaps in the existing legal framework in this area? What do you think will need to change once self-driving vehicles are in use?Third party liability for harm caused by the car, when operating in autonomous mode, must be included within the extended scope of compulsory motor insurance required by the Road Traffic Act 1988. The UK government’s stated policy objectives are to extend the compulsory insurance requirements for automated vehicles, provide cover for the ‘not at fault’ driver as well as passengers and (external) third parties, and to develop a system of classification for identification of automated vehicles which will require the extended cover to be in place.These goals are likely to be best achieved by requiring the extension of existing compulsory motor insurance legislation and terms and conditions (maintaining the approach that consumers can buy a single policy to cover all needs) and by creating associated statutory rights of recovery, allowing insurers to claim costs from manufacturers, developers or other stakeholders where they are ultimately responsible for a road accident.Only in this way can all the questions of risk and recovery raised by compensating victims of a road traffic accident involving an automated vehicle be fully addressed. It would be more proportionate to extend the scope of compulsory motor insurance to include autonomous driving than it would be to alter dramatically current law and practice applying to the product liability insurance market.It is also anticipated that some sections of the Highway Code will require amendment or clarification. For example, section 150 relating to the use of driver assistance systems and distraction and section 160 regarding driving with both hands on the wheel are two sections which the UK government has sought comments on in its recent consultation paper ‘Pathway to Driverless Cars: Proposals to support advanced driver assistance systems and automated vehicle technologies.’ The government is currently reviewing the responses received to this consultation, and will be looking to make specific proposals to amend the text of guidance and statutory instruments to facilitate the sale and use of advanced driver assistance systems in a future consultation, before implementation.
This article was first published by Lexis PSL.
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