RESPONSE TO GOVERNMENT CONSULTATION ON DRIVERLESS CARS

Proposals for reform

The government is keen to encourage the commercial opportunities presented by rapidly developing automotive technologies. It believes that within 2 - 4 years we could see the introduction on our roads of vehicles equipped with autonomous advanced driver assistance systems.

It is consulting on its proposals for reforming:

• the scope of motor third party insurance cover
• construction and use regulations
• the Highway Code

Shortcomings

In my New Law Journal article, The road ahead, I alert RTA practitioners to some shortcomings in the governments’ paper: Pathway to Driverless Cars.

In my view the proposals overlook the fact that the existing third party motor insurance requirement should already include product liability cover.  This is clearly required by the European Directive 2009/103 on motor insurance that Part VI of the Road Traffic Act 1988 is intended to fully implement.  In my view the problem lies elsewhere:  in the empirical development of our legislation over the past 85 years (since the first Road Traffic Act 1930 introduced the concept of compulsory insurance) whereby additional provisions have been grafted on in a piecemeal fashion to the existing provisions without any proper consideration being given to their effect on the original Parliamentary intention; in the confusing and eclectic mix of legislative and extra-statutory provision; in the basic non-conformity of much of our national law provision with the European law that is clearer, shorter and superior in the degree of compensatory protection it affords to third party victims and the government’s failure to regulate the terms of third party cover provided to the public.

These failings are the subject of an ongoing judicial review by RoadPeace against the Secretary of State for Transport.

Consultation Response

I have been consulted by the Association of Personal Injury Lawyers and RoadPeace on the issues raised by the Pathway to Driverless Cars consultation paper.

I have also been working in collaboration with Professor Robert Merkin QC, Lloyds professor of commercial law at the University of Exeter, to prepare our own consultation response.  Readers can access the Merkin / Bevan consultation response here: CONSULTATION RESPONSE.

We argue that the entire corpus of national law provision for guaranteeing the compensatory entitlement of third party victims should be codified in the government’s proposed Modern Transport Bill.  This provision needs to be brought into line with the minimum standards of compensatory protection required under European law.  Welding on new product liability provisions to an already defective structure will only compound the problem. 

Third party motor cover must include product liability for defective mechanical and technical systems, if it is to provide effective and prompt compensatory provision for victims and in order to conform with European law minimum standards.  We propose strict liability being imposed on producers and suppliers of autonomous vehicle systems in favour of all third parties affected thereby with the state of the art defence (under section 4 (1) (e) Consumer Protection Act 1987) being excluded in this context. We also argue for a first point of contact role for motor insurers and that they should have an absolute duty to compensate third party victims promptly even where a product defect caused or contributed to the accident, subject to a subrogated right to recover their outlay from the producer, supplier, retailer, owner, servicer etc.

9 September deadline

The deadline is fast approaching.  Law firms and interested parties have until 9 September in which to respond to this important consultation.