IS REMOTE DRIVING LIKELY TO CAUSE VICTIMS UNDUE DELAY AND EXPENSE IN CLAIMING COMPENSATION; OR COULD IT DEFEAT CLAIMS ALTOGETHER?
The Law Commission have published an issues paper on remote driving. Responses were invited from 24 June 2022 to 2 September 2022. The matters about which the Law Commission have sought consideration include potential longer-term regulation of organisations behind remote driving, whether the Construction and Use Regulations require amendment, and definitions of remote drivers. These are all important and deserve careful responses from across the sector.
Being a barrister specialising in civil liability representing both sides, claimants and defendants, I have decided to publish a response to the Law Commission’s question, which provides the heading for this article, regarding civil liability.
I focus on the problems which subcontractors in the field of remote driving may create for the efficacy and success of claims for compensation – and the relevant points which stakeholders in industry and insurers should be aware of.
A thicket of subcontractors: practical problems
1. Multiple parties and orders for costs potentially swallowing up claimants’ damages
The Law Commission gave an example of where injuries are caused when a remotely driven vehicle loses connectivity and can no longer be controlled by the remote driver, and the software designed to bring the car to a safe stop fails. The Law Commission noted that there is a possibility that victims may find it more difficult to obtain compensation if the organisation that set up the system subcontracted for remote drivers.
The basic rule is that parties are liable for actions of their employees acting in the course of their employment. This is termed ‘vicarious liability’. However, a main contractor is generally not liable for actions of independent subcontractors. It is not always clear in a given case whether fault may lie with a main contractor or a subcontractor. Road transport has generated these problems for many years: many of the leading cases on vicarious liability throughout the past decades have related to haulage.
In a position where there are subcontractors, it is often the case that potential defendants will seek to show that they are not at fault. In such situations, claimants and their legal advisors may be left in a difficult position as to whether they should issue against only one or multiple defendants.
Since April 2013, qualified one-way costs shifting (“QOCS”) has been in force in relation to personal injury claims. The effect of QOCS is that if a Claimant loses their claim for personal injury, orders costs cannot be enforced against them unless certain situations pertain, such as if they have been ‘fundamentally dishonest’. However, where there they have sued two defendants and been successful against one, the successful defendant may be able to enforce its costs against the claimant who unsuccessfully sued them, out of the damages which the other defendant has awarded them, up to the value of those damages. If a claimant succeeds against only one defendant, the costs of the successful defendant may well end up swallowing up the entirety of a claimant’s claim if awarded against the claimant rather than the unsuccessful defendant. This is tantamount to defeating the claim altogether. A claimant may seek an order that the defendant they successfully sued pays the costs of the defendant they unsuccessfully sued, but the decision as to whether to award such costs rests with the discretion of a judge.
By contrast, if they choose to sue just one defendant, they risk suing the wrong one.
In practice, what often occurs is that claimants’ advisors press both potential defendants, to show that if they do end up suing both, they have done so reasonably. From the industry perspective, it is therefore worthwhile ensuring that recording of any fault, and methods for demonstrating that the system was working, is as clear as possible. This means that if a claimant issues pre-action correspondence, it can be made utterly clear that fault does not lie with the system which the relevant company is responsible for.
But this does not, and will not, always happen.
Judges have discretion as to costs in such a situation. The key question, though not the only question, will be whether it had been reasonable for the claimant to claim against the successful defendant, on a holistic view of all the circumstances in the case. In practice, the lines between suing both an organisation running a system for remote vehicles and its subcontractor reasonably versus unreasonably will not always be clear, and will depend on the evidence in the case.
There are other factors at play. Judges may be more or less claimant or defendant friendly. Advocates may be more or less persuasive. Legal representatives and insurance loss adjusters may be better or worse at asking the right questions and setting out clearly their reasoning leading up to suing multiple parties. As those of us who regularly run cases before the courts will appreciate, judicial discretion based on all the circumstances of the case and reasonableness is a recipe for legal uncertainty.
Judges inevitably therefore will in some cases award a successful defendant’s costs against a claimant, and in others against the other defendant.
The scale of the problem is significant: in all but the clearest cases where there is a subcontractor, both claimants and defendants will have legal uncertainty as to their likely costs outcome.
2. Defeating claims: liability ‘gap’ where there are multiple defendants
Let us consider the situation where there are multiple potential defendants and a claimant wishes to sue them. Where the facts are clearly damaging for the defendants, a court will often have little sympathy with attempts to blame each other. However, there are other cases where it is genuinely unclear who was at fault. Disclosure and expert reports may assist but these are not always final answers. Ultimately a claimant will still need to prove their claim against at least one defendant and preferably all of them on the balance of probabilities. If the problem could have been the fault of any of the defendants, without clarity on where the problem lies, it may be difficult for a claimant to prove their claim. From the defendant perspective, this leads to cases running on for some time, without any certainty about which way the liability and costs will go – the opposite of the certainty which insurers want in respect of their underwriting.
From the claimant point of view, this is a problem which starts well before the door of court: to take a claimant’s case on a conditional fee agreement, there should be at least 50% prospects of success. Where there are multiple potential defendants and it is unclear where liability lies, without clarity on how a claimant might easily work out who is liable, depending on the facts of the case it may be difficult to demonstrate prospects of success at 50%. If that is right, then it may prevent a claim being made as lawyers will be reluctant to take it on, let alone a claim succeeding. At the very least it may cause delay and expense.
3. Defeating claims: lack of public liability insurance on the part of subcontractors?
There is no legal requirement that every company in the UK provide public liability insurance. Where a subcontractor may not have public liability insurance, and so may not have the funds to pay out if the claimant is successful, this may in practice defeat a claim.
Of course, for companies, a big enough claim can potentially bankrupt them, causing potential chaos for their contractual partners: so it is well worth those in the industry ensuring that they and all their subcontractors do have public liability insurance.
4. Defeating claims: defendants located abroad
Where a potential defendant is located abroad, depending on the country there may be problems in bringing them before a court in the UK. This again would potentially defeat a claim. Furthermore, suing those abroad tends to make things more delayed, more complicated procedurally (with more chances for legal representatives to get things wrong and scupper a claim) and more expensive. Where one defendant is abroad and one defendant is within the UK, the potential delay and added complexity ramps up costs for them too.
5. Making claims more expensive: the need for potentially several expert reports
In any given case on remote driving, there may be the need for at least one and potentially many expert reports: for instance about the technology allowing remote driving itself, online connectivity systems, how much needs to be done to fault-check systems and components prior to usage, and so on. This will particularly be the case where there are multiple parties and which party is at fault may depend on which system or component went wrong. Expert reports are expensive and take time to be produced. Again, this appears to be a recipe for substantial delay and expense in such claims – a problem for both claimants and industry.
This article does not pretend to be a complete response to the Law Commission’s consultation or even this question. For example, the Association of Consumer Organisations has written here about the further issue of claims potentially being complicated and made more expensive by the interface between driver liability and product liability. Rather, this article simply raises a selection of potential problems which may arise, especially where there may be subcontractors, and therefore multiple potential defendants. These hold the possibility not only to create additional delay and expense, but also to defeat claims altogether.
To conclude, the issue of subcontractors and therefore multiple defendants may defeat claims in several ways: (1) by creating risk that an adverse costs order may swallow up a claimant’s damages; (2) by creating difficulties in proving which party may have been at fault, and therefore in proving that any party was at fault; and (3) by a situation existing where negligent party may not have appropriate public liability insurance.
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