Answer to Q 17 on the need for a further review of civil iability

Law Commission Consultation on Automated Vehicles

CHAPTER 6: CIVIL LIABILITY 

Is there a need for further review? 

Consultation Question 17 (Paragraphs 6.13 - 6.59) 

We seek views on whether there is a need for further guidance or clarification on Part 1 of Automated and Electric Vehicles Act 2018 in the following areas:  
(1) Are sections 3(1) and 6(3) on contributory negligence sufficiently clear?  
(2) Do you agree that the issue of causation can be left to the courts, or is there a need for guidance on the meaning of causation in section 2?  
(3) Do any potential problems arise from the need to retain data to deal with insurance claims? If so: 
(a) to make a claim against an automated vehicle’s insurer, should the injured person be required to notify the police or the insurer about the alleged incident within a set period, so that data can be preserved?  
(b) how long should that period be? 

Answer:  

(1) Contributory negligence

The product liability provisions within Part 1 of the Automated and Electric Vehicles Act has clear parallels to the Consumer Protection Act 1978. Both make provision for strict liability and then confer the defendant’s entitlement to raise a defence of contributory negligence. However, although s 2(1) of the Consumer Protection Act provides for liability on the producer/supplier where any damage is “wholly or partly caused” by a defect, s 2 of the Automated and Electric Vehicles Act does not make it clear that the insurer will be liable for damage partly caused by the vehicle.

S 2(1) of the Automated and Electric Vehicles Act merely provides that where an accident is caused by an automated vehicle…the insurer is liable for that damage”.

It appears to be the intention of the 2018 Act that the insurer should be liable if damage is partly caused by the vehicle, as section 8(3) provides that “a reference to an accident caused by an automated vehicle includes a reference to an accident that is partly caused by an automated vehicle. Although this clarified in section 8(3), the different wording referred to above in s2(1) introduces an entirely unnecessary divergence that will probably need to be resolved by a court.

I believe that there would be better legal certainty if section 2(1) provided that insurers are liable where damage is wholly or partly caused by the vehicle.

(2) Causation

When the courts consider the allocation of damages for contributory negligence, they must weigh up not only the causative contribution of the parties in terms of to what extent are the parties responsible for precipitating the accident but they must also taking into account the causative potency of the victim’s negligence. This was considered by (then) Lady Justice Hale in the case of Eagle v Chambers, and later unanimously approved by the Supreme Court in Jackson v Murray and others [2015] UKSC 15:
‘It was noted by Hale LJ in Eagle that there were two aspects to apportioning liability between the claimant and defendant, namely the respective causative potency of what they had done, and their respective blameworthiness…The court had consistently imposed a high burden upon the drivers of cars, to reflect the potentially dangerous nature of driving. ‘
In relation to automated vehicles, the causative potency of the manufacturer or producer’s culpability ought to take into account the fact that by making and / or marketing the product that they have introduced a potential hazard to the road using environment.  A driverless car could be equated to a heavy guided missile.  Consequently, its potential to cause harm or the likelihood of the harm being high is obviously significant.  In which case it is appropriate that the causative potency for any manufacturing or software defect should reflect this moral responsibility.  The same could be said of the known effects of automation on a human driver, which are said to be detrimental on their level of attention and the appropriateness / effectiveness of any reaction.

(3) Retention of data

Ideally, relevant data should be preserved and disclosed.  The practical considerations of implementing this is a technical issue that I am unable to comment on in any detail or authority.  However, it stands to reason that data storage, presumably from multiple sensors, is likely to involve large quantities of memory and so the ability of automated vehicles to store a long operational history is likely to be limited.

Accident's should be reported to the AVSE within 24 hours and the relevant data uploaded to that destination within 72 hours.  Consideration should be given to deciding whether it would be appropriate to impose a legal presumption following an unjustified or unexplained failure to upload or preserve this data.

My personal experiences in practice of different Police forces around the country suggest their ability to administer accident recording and data retention either efficiently or consistently is limited.  Perhaps this is a role that should be assigned to the AVSE.

(4) Other related issues

What standard?
It is unclear whether the standard of care for the automated system is that of a reasonably careful driver, a highly skilled driver, a reasonably proficient software or of perfection. Nowhere in the Act is this specified, and I do not believe that this should be left to the courts. Private individuals injured by AV would be required to endure potential ruinous appeal to clarify the law. The law should be clear and comprehensive from the outset, with no need to rely on the courts to make decisions on the interpretation of the Act.

Untraced Drivers Agreement 2017 and the Uninsured Drivers Agreement 2015
The deficiencies alluded to at LCCR 240 para 6.18 et sequentia should be addressed immediately.  Strict liability should attach to accidents caused by automated vehicles operating in driverless mode.  The MIB has a history of obfuscation and delay and the government should take the initiative by dictating appropriate amendments to be agreed forthwith.  Even with a Brexit, it would be sensible and possibly necessary to apply the continental principle of equivalence here.

Is section 2(6) of the 2018 Act sufficiently precise?
In ordinary motor insurance policy claims brought under s151 Road Traffic Act 1988, an insurer can apply under section 152 of the 1988 Act for the policy to be voided where the policy was induced through a fraud.  Different tests apply, depending on whether the policy was a consumer or commercial contract.  Where such an application succeeds in a voidance declaration, the policy is treated as though it never occurred. Strict liability under section 2 is premised on a policy being in force at the date of the accident.

Although s 2(6) of the 2018 Act provides “Except as provided by section 4, liability under this section may not be limited or excluded by a term of an insurance policy or in any other way”, it is unclear whether the phrase “any other way” provides an absolute prohibition on insurers avoiding liability after a policy has been issued. It is unclear whether it precludes an insurer from applying under section 152 for a declaration that the policy is void ab initio.

Incidentally, section 152(2) of the 1988 Act does not conform with EU law, see the CJEU ruling in Fidelidade Case C-287/16.

This uncertainly present by this imprecision in s2(6) of the 2018 Act creates a risk that without clarification, insurers will argue that strict liability does not apply, because strict liability under the Act only applies if insurance is in place. In these circumstances, a court could easily conclude that (i) insurance was not in place because the policy holder deliberately misled the insurer, voiding the policy as if it never existed and (ii) that this does not contravene section 2(6). Insurers can and do regularly raise these defences to evade liability under s 151 of the 1988 Act. Although this is prohibited under European law, these rulings have not been implemented/followed, and so in the absence of any UK precedent, their influence is set to be lost on Brexit, along with the EU law doctrine of direct effect. As such, it is even more vital that there is clarification as to whether, under s2(6), insurers are precluded from applying under s 152 of the 1988 Act for a declaration that the policy is void, thus avoiding liability.