Answers to LC Consultation Questions 2 - 5

Law Commission Consultation on Automated Vehicles

Consultation Question 2 (Paragraph 3.45) 

We seek views on whether the label “user-in-charge” conveys its intended meaning. 

Answer:  

Yes.

Consultation Question 3 (Paragraphs 3.47 - 3.57) 

We seek views on whether it should be a criminal offence for a user-in-charge who is subjectively aware of a risk of serious injury to fail to take reasonable steps to avert that risk.  

 Answer: 
Probably yes for SAE level 4 but not for SAE level 5 once ADS engaged for the reasons given at para 3.47 and para 3.54-56.
I do not anticipate that any new criminal liability is called for in fully autonomous vehicles at SAE L5.
Definition of risk needs to express an unacceptably high level; not any risk however small.

When would a user-in-charge not be necessary? 

Consultation Question 4 (Paragraphs 3.59 - 3.77) 

We seek views on how automated driving systems can operate safely and effectively in the absence of a user-in-charge.  

Answer:  

See the answer to Q1 above.

Type approval as fully automated (SAE L 5 automation) should be restricted to vehicles that have the capacity to operate in a completely driverless mode throughout its journey. I believe that this is likely to require its ADS to identify and respond appropriately to every sensory input that a human driver is required to identify and react to and to at least the standard of an experienced and competent driver (if not higher).  This would include, distance of vision, hand signals and temporary road signs, weather conditions, unanticipated occurrences (#3.60) and nuanced scenarios where appropriate precautionary response / manoeuvre or to assume a minimal risk condition.

Clearly this level of automation has yet to be achieved and I understand that it may not be so for at least ten years.

Certain specified SAE L4 vehicles may have the capacity to operate safely without a user-in-charge where the automated DDT is confined to a low risk ODD where they can easily achieve a minimal risk condition without human intervention.

Consultation Question 5 (Paragraphs 3.59 - 3.77) 

Do you agree that powers should be made available to approve automated vehicles as able to operate without a user-in-charge? 

 Answer:  

Yes, see response to Q1 above.  This qualified approval is subject to:

(i) full automation (SAE L5), and
(ii) Some highly automated vehicles (SAE L4) that have a highly prescriptive low risk ODD that cannot be overwritten in transit, where they can easily assume a minimal risk condition without human intervention and
(ii) the unmanned being fully compliant with the relevant international regulations governing road traffic: e.g. the UNECE Vienna and Geneva Conventions (#2.51; #4.14) and the EU Framework Directive 2007/46/EC (#4.19) in each instance, as amended or replaced.

Answer to Consultation Q1

Law Commission Consultation on Automated Vehicles

Consultation Question 1 (Paragraphs 3.24 - 3.43) 

https://www.lawcom.gov.uk/project/automated-vehicles/

Do you agree that: 

(1) All vehicles which "drive themselves" within the meaning of the Automated and Electric Vehicles Act 2018 should have a user-in-charge in a position to operate the controls, unless the vehicle is specifically authorised as able to function safely without one?  

Short Answer:  

1. No.

2. I recommend a diametrically opposed approach for the high and advanced levels of automation anticipated by the AEVA 2018:  The imposition of a user in charge should be the exception and not the rule.

3. I suggest that the presence of a user-in-charge be largely confined to vehicles equipped with SAE L4 automation (where the ability to minimise any risk to safety can be addressed, progressively, as much through external factors, such as its operational design domain [ODD] as by product design.  Indeed, at SAE L4 an automated vehicle’s ODD may often prove to be the decisive factor in determining it’s safety, particularly where has a relatively rudimentary level of ADS.

4. The role of a user-in-charge, as proposed, is largely antithetical to the concept of full automation at SAE L5.  However, it is conceivable that a user-in-charge might be justified at SAE L5 in exceptional circumstances: as where, for example, dangerous substances are being transported by a fully automated vehicle. However, in such a scenario, the need for a user-in-charge would less attributable to the innate characteristics of the automated driving system (ADS), as opposed to its intended use.

My answer then goes into considerable detail under two headings, the first considers fully automated vehicles subject to the Society of Automotive Engineers (SAE) classification at Level 5, before considering the implications for vehicles equipped with SAE Level 5 high automation.

My basic premise is that we should ensure that safety is guaranteed through safe design, manufacturer and testing.  We need to learn from history, e.g. the Red Flag Acts, and avoid imposing a human presence if it is not needed as this is likely to undermine the trans-formative potential of this new technology.  That said the concept of imposing a user-in-charge may well have a role to play, as an exception to the rule.

Question 1 continued

(2) The user-in-charge:  

(a) must be qualified and fit to drive;  

(b) would not be a driver for purposes of civil and criminal law while the automated driving system is engaged; but 

(c) would assume the responsibilities of a driver after confirming that they are taking over the controls, subject to the exception in (3) below? 

(3) If the user-in-charge takes control to mitigate a risk of accident caused by the automated driving system, the vehicle should still be considered to be driving itself if the user-in-charge fails to prevent the accident. 

Answer:  

1. Subject to the qualification given above, Yes to (2) and (3)

2. Additional and officially approved training and testing of the user-in-charge’s role and clarification of the standard of care to be expected of a user-in-charge is also essential.

I am happy to consider sharing my detailed arguments, if so requested.

The consultation deadline expires on 8 February.

DEADLINE FOR LAW COM CONSULTATION IS 8 FEBRUARY 2019

The Law Commission's consultation on automated vehicles concludes on 8 February 2019.

It is vital that as many experienced personal injury practitioners as possible respond to this detailed consultation.

Although the Commission's terms of reference are largely restricted to advising the government on the regulatory framework for the advanced forms of automated vehicles that are contemplated by the Automated & Electric Vehicles Act 2018, it is clear from the Commission's meticulous consultation paper, including some of the consultation questions (e.g. Questions 6, 7,8 and 12), that it realises that it needs to widen the remit of its research.

It is vitally important that informed professionals draw attention to the fact that the 2018 Act is a missed opportunity.  By failing to address the present and immediate need to reform the liability and insurance framework that applies to semi-automated vehicles that are arriving on our roads in increasing numbers but which are not caught by the no-fault liability provisions of the 2018 Act,  the government has effectively abandoned its responsibilities to accident victims who are ill served by the present inadequacies of the existing civil liability and insurance law framework for conventional vehicles.

I plan to post some of my draft responses to the Law Commission over the next week, to help others form their own view and to encourage others to take the time to respond.

The Law Commission's excellent paper can be accessed here: https://www.lawcom.gov.uk/project/automated-vehicles/

WHAT DOES BREXIT MEAN FOR PERSONAL INJURY?

New Webinar!

On 25 February I will be co-presenting a webinar of the likely implications of Brexit for personal injury lawyers.

Follow the link for the programme and to book.

PARTIALLY AUTOMATED VEHICLES

New Webinar!

On 8 February I will be presenting an APIL webinar on the problems associated with current and close to the market levels of vehicle automation.

Follow the link for the programme and to book.

NEW STATUTORY LIABILITY FOR DRIVERLESS VEHICLES

New Webinar on driverless vehicles

On Friday 1 February 2019 I will be delivering a webinar on the Automated And Electric Vehicles Act 2018 for the Association of Personal Injury Lawyers.

Follow the link for a copy of the programme and to book.

DRIVERLESS VEHICLES: a future perfect? (part 2)

Strict liability under section 2 Automated And Electric Vehicles Act 2018 and the lack of suitable legal provision for intermediate levels of vehicle automation.

In the second of my New Law Journal mini-series, I consider the strengths and weaknesses of the Autonomous And Electric Vehicles Act 2018. 

I explain why this legislation is defective and why it is also a missed opportunity: as it fails to address the urgent need to clarify the law concerning the intermediate levels of vehicle automation that are close to market. I  conclude that victims of partially automated vehicles have been badly let down by the Department of Transport, that appears to have been browbeaten by the motor insurance industry into allowing them to cherry the pick low risk liability represented from the fully automated vehicles of the future.  The government has mapped out (imperfectly) the high ground of highly advanced automation but ignored the treacherous ground leading there.