When cars first started to emerge in the late nineteenth and early twentieth centuries, they were perceived by many as scary, and inherently dangerous. This perception of cars also gave the courts and judiciary pause when it came to determining cases in which cars had caused damage to people or property: such was their perceived inherent danger that, for a brief period, it was suggested and considered that cars should be subject to the rule in Rylands v Fletcher (1868) L.R. H.L. 330, effectively imposing strict liability on the owner of a car on the basis that it was a thing that was “likely to do mischief” and that driving a car was a dangerous activity. This was ultimately rejected in favour of fault-based liability, and it is this law of negligence that continues to govern road traffic accidents today, over a century later.

CAVs are, at present, similarly perceived as an uncertain and risky technology.  There is a general consensus that early versions of this technology will present risks and that accidents will happen: that much is inevitable, and is indeed the bedrock of testing programmes. Given the complexity of CAVs – particularly earlier iterations which require both a User in Charge and the CAV to contribute to the driving – there would, prima facie, be a strong basis for suggesting that the introduction of CAVs could bring about more instances of human error and scope for negligence suits.

At the time of writing, the CAV technology available on the marketplace is classified as SAE ‘Level 3’: summarily, this means that the vehicle is capable, at least in some situations, of driving itself, but requires a human to be capable and ready to take over if, for any reason, the vehicle is no longer able to continue with the driving.  This is in contrast to a ‘Level 5’ vehicle (in essence a truly driverless vehicle) or a ‘Level 4’ vehicle (where the vehicle is truly driverless in specific situations, such as on a motorway, or in fine weather).

Despite the fact that human input will still be required in Level 3 and Level 4 CAVs, both the Law Commission and the Government’s Centre for Connected and Autonomous Vehicles have indicated that AEV law is likely to be founded on two key principles: first, that CAV users should not be required to actively monitor, or intervene in, the CAV’s driving; and second, that CAV users should not be held liable – whether as a matter of criminal or civil law – for the CAV’s driving while the Automated Driving System (“ADS”) is appropriately engaged (see paragraphs 3.50-3.52 of the Law Commission’s Consultation Paper 3 on Automated Vehicles); paragraph 2.26 of the CCAV’s 2020 Call for Evidence on the Automated Lane Keeping System) and the Department for Transport’s subsequent announcement that Automated Lane Keeping System (ALKS) technology will be classified as self-driving (i.e. not requiring monitoring)).

This effectively paves the way for users to sit back and relax while their car does their driving – provided they remain ready to take over the driving task once again when the CAV is no longer capable of driving and requests human input. Two key benefits of this approach are: it removes the uncertainty and complexity associated with litigating CAV accidents; and it is, in turn, likely to broaden the appeal of CAVs to many users.

But what will happen when things do go wrong whilst the ADS is engaged? The Law Commission’s latest consultation document (which is the third and final before its report, due later this year) proposes that behind every CAV should stand an Automated Driving System Entity (“ADSE”): a single entity, likely to be (though not necessarily) the CAV manufacturer, registered with the regulator “as the first point of reference in the event of problems” (See paragraphs 8.64-8.67 of the consultation document).

The ADSE should be able to continually demonstrate and vouch for a CAV’s safety to the regulator, and to step in to pay financial penalties in the event that accidents are caused by the CAV (Law Commission’s Consultation Paper 3, Chapter 11).  The emphasis in such a system is not on taking an ADSE to Court for every minor malfunction or accident. Instead, the proposed framework focuses on a CAV’s initial testing and approval for widespread use, with the hope that, following a CAV’s approval for use on UK roads, accidents and shortcomings are unlikely. The Law Commission’s express hope is that such a system should function in a similar manner to the regulation of railways and air, with transparent investigation mechanisms exposing opportunities to learn lessons and safety for all, as opposed to a culture of blame. The proposal also includes the possibility of criminal liability for ADSEs that commit serious wrongdoing; examples in the Law Commission consultation include lying about safety tests, or misleading the regulator (Law Commission’s Consultation Paper 3, chapter 14).

However, the proposal explicitly rules out compensation for injured individuals, on the basis that they “…would be paid by the insurer under section 2 of the Automated and Electric Vehicles Act 2018” (Law Commission’s Consultation Paper 3, para.11.41).  Leaving aside the question of compensation for injuries and/or damage caused by uninsured vehicles, it seems highly unlikely that AEVA insurers will be content to take a ‘lessons learned’ view and to simply make payments out to victims without any recovery in situations where the CAV has malfunctioned. AEVA insurers will, no doubt, seek contributions from the ADSE and/or CAV manufacturer(s), most likely in the form of a product liability claim. I have written elsewhere on the nature of these claims, and the reforms which are likely to be required in this area of law (A Practical Guide to the Law of Driverless Cars, Chapter 9).

Equally, where the facts of a given case are such as to implicate a human (for example, where a human has not been capable or willing to drive the vehicle at the end of a transition demand), it is unrealistic to imagine that negligence claims will not be brought against those individuals (whether by the injured person directly, or at the AEVA insurer’s instigation). Given that human involvement does not phase out of CAV technology until we reach SAE Level 5, such claims are not going to disappear in the next few years. See Anthony Johnson’s article about contribution claims by AEVA Insurers.

It is therefore clear that such a seismic shift in the way our society thinks about and approaches road traffic accidents is likely to take some time. It is also likely to coincide with the advancement of CAV technology toward its end destination of minimal human input. The Law Commission’s most recent consultation proposes a rigorous two-stage approval process for CAVs to be used in the United Kingdom: given that this system should enhance the safety of CAVs and reduce accidents, this is to be welcomed generally, but will also assist in the transition to a regulatory and reflective landscape. However, those who have the misfortune to find themselves injured in the near to medium future are still likely to ask the question ‘Who is to blame?’ and to seek compensation accordingly.

Scarlett Milligan

Photo by Dave Hoefler on Unsplash

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