In 2015 over 186,000 people were injured following accidents on UK roads and 1,732 were killed. It is estimated that around 94% of all road traffic accidents are caused by vehicle drivers making a wrong decision*.
If human behaviour is the cause of so many injuries and deaths, should humans be taken out of the driving equation altogether? How long before driving our own vehicle becomes as socially unacceptable as smoking?
Proponents of driverless vehicle technologies say that driverless cars or connected and autonomous vehicles (‘CAV’) as they are known, will result in less accidents, injuries and deaths on our roads as well as provide other benefits such as convenience, safety, environmental impact and economic efficiency.
On the basis that drivers apparently spend an average of six working weeks each and every year spent perched behind a steering wheel, a CAV also offers the potential for its passengers to use that time spent travelling constructively.
Driverless vehicles might be a difficult concept for some to come to terms with given the love affair we have with our cars.
The evolution of the motor car during the last century has given us the freedom to go where we want, when we want and has created significant employment opportunities. However, the benefits of motor cars should be considered and weighed against any detriment caused.
Is there another way to ensure that the costs associated with vehicle ownership, environmental pollution and detriment to human health are significantly reduced?
Prime land in our towns and cities is currently utilised to park and store motor vehicles that are only used for around 4% of the time.
A solution that results in less vehicles on the road should mean a world of less traffic and less pollution, enabling us to design our towns and cities with people in mind, instead of vehicles.
Pavements can be wider, roads narrower and car parks converted from concrete and tarmac into garden or green spaces.
Fewer vehicles means fewer vehicle owners, fewer accidents, fewer claims and less demand for insurance.
However before demand for driverless car insurance and potential profit margins can be determined, other factors will need to be considered. For instance the cost of repairing complex autonomous machines is likely to involve premium priced specialist attention at least in the short and medium terms.
Causation and liability investigations following a crash is likely to require the interrogation of ‘black box’ data by accident investigators to determine cause and whether a third party is responsible for supplying a defective component.
If we can create robotic vehicles that make autonomous decisions to detect and avoid collisions and provide a safe and efficient driverless vehicle system around our busiest cities, how long before that technology is utilised to decimate employment in other sectors?
Drones are already being developed by organisations such as Amazon and it is envisaged that autonomous machines will soon be selecting goods from warehouses and taking to our skies to deliver those goods directly to our homes. Initial testing of such technology has already commenced.
It may only be a matter of time before autonomous machines are serving us in shops, bars and restaurants with the implication that those employed in the retail and leisure sectors may need to retrain / upskill if they are to remain employed.
Is a complete transition to driverless cars an inevitability or does this new technology pose too much of a risk to employment, safety and security and raise too many potential privacy issues?
The concept of the human driver’s decision making process being delegated to automated control systems within CAVs is likely to be of concern to many - given the moral, ethical and legal implications of such technology being widely used.
Unlike other predominantly automated transport systems already commonplace in society such as lifts, trains and aircraft, a CAVs central control system will use algorithms to process and convert data from sensors into vehicle actions and will need to determine when and how they react to other road users including CAVs, human driven vehicles, cyclists and pedestrians.
A term coined “moral algorithm” relates to the rationale behind the programming of CAVs in relation to the decision making processes that will be developed to ensure that accidents are minimised and, as far as possible, to avoid injuries and loss of life.
Those responsible for the development of programming will need to consider dilemmas such as how a CAV might respond once it has determined that a collision is inevitable? Does it swerve to avoid a group of pedestrians and sacrifice its passenger or vice versa? Does it break the speed limit and the law in order to avoid potential danger or to ensure an emergency vehicle is not unnecessarily detained?
Both software and hardware providers are currently involved in the development of these technologies and large contractual supply chains will inevitably be involved in the production and supply of the various components that make up CAVs.
In the event that something goes wrong, data, some of which is likely to be considered commercially sensitive, will need to be disclosed in order to ensure that causation and liability are properly investigated and to enable lessons to be learnt.
The insurance implications of these new technologies need consideration as we move away from the standard UK motor vehicle insurance model based on insuring the driver of the vehicle rather the vehicle itself. Insurers will need to consider how a claim for injury to a CAV passenger following a crash whilst in driverless mode might be dealt with? How might an insurer paying such claims pursue a potential recovery from a third party following evidence establishing that the cause was a defect in the CAV, or a maintenance related issue?
CAVs are already in use by the military and space agencies and are expected to be in widespread use in agricultural and marine industries in the near future. The UK Government has already announced its intention to introduce The Modern Transport Bill to ensure that the UK is at the forefront of technology for new forms of transport including autonomous and electric vehicles and the Department for Transport’s (‘DFT’) remit is to promote the development and testing of CAV road vehicle technology across all sectors.
Some of the world’s leading motor manufacturers including Ford, Volvo, VW, Jaguar, Land Rover and Daimler as well as technology giants such as Apple, Google, Uber and Amazon have already been investing in CAV projects and gearing up to ensure that CAVs are with us sooner rather than later. All that remains is for regulatory and insurance reforms to be implemented and for the public to buy into the concept of driverless motoring. Semi-autonomous technologies are already commonplace in today’s vehicles with cruise control, electronic stability control, parking assist and advanced braking systems all available and commonly utilised to assist drivers to control vehicles.
Drivers are currently able to override these automated functions in order to avoid collisions with other road users such as pedestrians, cyclists, and to avoid stationary vehicles and to respond to unexpected events such as animals or debris in the road. Vehicle manufacturers currently warn drivers of vehicles equipped with such systems to remain alert and ready to resume control in the case of unexpected events or adverse road conditions and legal liability can be problematic. In cases where there is a lack of evidential data, it can be difficult to establish the cause of an accident and whether it is therefore attributable to human error or a faulty control system. In the Government’s response to a consultation paper entitled “Pathway to Driverless Cars”** the Government are proposing a rolling programme of reform which it says; “will help to facilitate the introduction of innovative new technologies in a safe, agile and evidence based manner.”
During this transitional period, where the development and introduction of new vehicle technologies will ultimately result in semi and fully autonomous vehicles sharing the roads with conventional human controlled vehicles, the Government proposes to take a step by step approach in regulatory reform. Any future policy decisions will be based on evidence obtained from CAV testing both on test tracks and on public roads. The DFT have already clarified that the UK’s current legal and regulatory framework is not a barrier to the testing of automated vehicles on public roads and, the Government has further agreed to provide £100 million and given the ‘green light’ to a British Consortium which includes an insurer, for trials of CAVs to commence on UK road and motorway networks, commencing January 2019. Those trials will include the testing of a fleet of vehicles operating autonomously between London and Oxford.
The fleet will communicate with each other and share data relating to hazards detected and actions performed to avoid those hazards. Data obtained from these tests will necessarily be shared and is likely to be used to improve autonomous systems, develop further algorithms and influence future governmental policy decision making. The highly detailed and specific research and test results will undoubtedly hold great significance for insurers.The Government clearly intends to ensure that CAVs are adequately insured so that the innocent victims of a collision involving a CAV receives compensation quickly in line with longstanding practice in UK insurance and in compliance with the EU Motor Insurance Directive. The Government has proposed to legislate to create a new insurance framework to facilitate the arrival of new automated vehicle technology and proposes to supplement the compulsory motor insurance (Part VI of the Road Traffic Act 1988) to include the use of fully automated vehicles. A single insurer model will be established where an insurer covers both the driver’s use of the vehicle and the CAV technology.
The Government believes this will ensure that drivers are covered both when they are driving, and when in driverless mode and in the event of a collision whilst in driverless mode, an innocent victim (either inside or outside the vehicle) would be able to claim from the insurer of the CAV. Where a crash is determined to have been caused by a CAV when in driverless mode, the insurer would be liable to pay compensation to the innocent third party victim and would also pay out to the motorist if injured in the vehicle if the driverless mode was active.
The proposals mean an insurer will only be able to exclude liability to the injured CAV motorist (but not other innocent victims) if it can be established that the crash resulted from unauthorised modifications made by the motorist to their vehicle’s operating system, or due to a motorist’s failure to install required updates to the software for the vehicle’s operating system. Because the new statutory liability will be otherwise unconditional, an insurer will not be able to exclude payment of compensation to a victim if the CAV caused the crash as a result of it being hacked. Where the manufacturer is liable because a manufacturing defect in the CAV caused the accident or negligence by a servicing agent caused the CAV to be defective and caused the accident, then it is proposed that the insurer will be able to recover against the manufacturer or servicing agent under existing common law and product liability laws.
Determining causation and liability for accidents in this apparent brave new technological world might initially be problematic and result in legal disputes. However, the Government is optimistic that insurers and manufacturers will develop processes to handle most recovery claims quickly and easily. It remains to be seen whether those developing these technologies are prepared to willingly disclose data that may determine causation and assist with liability investigation or whether regulatory amendments will be required to make disclosure of such data a legal requirement. The Government is confident that a ‘steady as she goes’ strategy in relation to regulatory amendments will be sufficient in order to usher the new technologies into society as and when they are developed, tested and approved. The Government proposes that the Modern Transport Bill will classify vehicles or type of vehicles that are to be regarded as CAV, and which will therefore be subject to the new single insurer model requirement.
Insurers will need to prepare for the inevitable impact these new technologies will have on all sectors of the insurance industry including, motor, transport, commercial, home, agriculture, marine and aviation and consider how their policies will respond to the risks posed by this imminent technological revolution. Current proposals are that all CAV data from the moment of impact and the moments thereafter should be disclosed to those investigating accidents as well as insurers. Initial results from the current and imminent testing of CAVs should help insurers to identify key risks.
Insurers will be keen to establish whether defective software or hardware is responsible for any accidents or whether the cause is attributable to the CAV owner’s failure to update software or maintain the CAV.
CAVs may be vulnerable to hacking and insurers will need to consider the implications of a policyholder’s failure to comply with any potential policy conditions which might oblige an insured to ensure that CAV software is kept up to date with adequate firewalls in place to minimise a risk of hacking.
Insurers may consider a claims condition in the policy requiring a policyholder to share data obtained from a CAV or its back up servers to determine the cause of any accident and which may exclude cover to:
• CAV damage
• other property when an accident is caused by hacking
• a failure by an insured to ensure compliance with policy term and conditions.
A data disclosure condition would also assist insurers to potentially obtain data necessary to determine any potential subrogated recovery target.
The fear of the unknown and the concept of robotic vehicles operating autonomously on the UK road network is initially likely to be of some concern to the general public. Unemployment will be a concern for many especially considering there are an estimated 250,000 taxi and private hire drivers in the UK which are potentially redundant once the new technologies are fully operational. Given the expectation that the technology will be utilised to improve efficiencies for logistical transport operation, delivery vehicles, buses and trucks as well as boats, trains and aircraft are also likely to become automated and therefore the effect on employment needs to be carefully considered.
However, with some persuasive marketing from the vehicle and technology manufacturers, the potential for technology sector employment opportunities and the concept of drivers reclaiming six weeks per year to spend catching up on emails, social media, reading, napping, or movie watching the ‘doubters’ are likely to accept that driverless cars are the way forward and insurers will need to prepare for what appears to be an imminent transport revolution.
Anthony Middleton
Associate Solicitor
T: 01204 678708
E: amiddleton@keoghs.co.uk
* DfT [2016] ‘Reported Casualties in Great Britain: Main Results 2015’ URL:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/533293/rrcgb-main-results-2015.pdf
Anthony Middleton
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