Smart Motorways: Where are we now?

Following on from Natalie Dawes’ blog six months ago, has there been any further updates on the thorny issue of Smart Motorways?

The contentious issue of accidents on Smart Motorways continues to rumble on. In January, Natalie Dawes updated clients with the latest information after comments from Coroner, David Urpeth, brought the argument of the safety of Smart Motorways back to the media. 

Since then, a number of further reports and comments have been published over the last few months.

In February, Coroner Mundy in Sheffield recommended that Highways England should be referred to the Crown Prosecution Service (CPS) to consider if manslaughter charges were appropriate in relation to a fatal road traffic accident that occurred on a stretch of Smart Motorway on the M1.

Dr Alan Billings, South Yorkshire's Police and Crime Commissioner, advised the BBC post the comments of Coroner Mundy that "I call upon the minister and Highways England to abandon this type of smart motorway before we have more serious injuries or fatalities”. It was also reported in May that South Yorkshire Police are now going to review two fatal crashes on Smart Motorway stretches of the M1.

A campaign group, Smart Motorways Kill, are also applying for a judicial review, asking for motorways without hard shoulders to be made illegal due to the dangers involved. If successful, this would mean 204 miles of motorway would need to be converted back to standard design – a significant cost.

Highways England announced (20 April) that they are accelerating the introduction of a number of safety measures set out last year. These include radar-based stopped vehicle detection technology to be installed on all operational all lane running (ALR) motorways by September 2022, six months earlier than originally planned.  Additionally they also confirmed that no new ALR motorways will open without radar technology.

But is this enough? The number of people being killed on motorways without hard shoulders increased each year from 2015 to 2019, and evidence submitted to the Transport Select Committee revealed that the rate of fatalities in ‘All Lane Running’ motorways is higher than traditional motorways in 2018 and 2019.[1] .

What does this mean for us in dealing with accident involving a stranded vehicle on a Smart Motorway?

Do the comments of Coroner Mundy suggest the potential for contribution proceedings against Highways England in appropriate cases? It will be interesting to see whether the CPS elect to bring charges against Highways England and what their response will be if they do.

Did the motorway comply with the updated specifications in relation to the emergency refuge areas and radar technology? If not is this potentially causative and does this create a cause of action against Highways England? In high value cases this could be worthy of consideration?

Similarly, if there is a delay in identifying the presence of a stranded vehicle in a live lane does this create a potential cause of action against Highways England? The Coroner’s Inquest referred to a delay of over 22 minutes between breakdown and notification of obstruction. Is this negligent? What if the “stopped vehicle detection” technology fails?

Notwithstanding the comments of Dr Billings, and the continuing concern around safety, Smart Motorways are likely to be an increasing part of our transportation infrastructure. It will be interesting to see how statute and case law develops as accidents potentially caused by the absence of the normal hard shoulder are litigated. When you also factor in technological changes in terms of autonomous vehicles and the increased use of e-scooters it is clear that there are interesting times ahead for those of us who practice in this area. Watch this space.

[1] https://www.dailymail.co.uk/news/article-9538993/Official-Smart-motorways-deadlier.html