Automated and Electric Vehicles Bill introduced to Parliament

The Government has recently introduced the Automated and Electric Vehicles to Parliament.

Introduction

The Government has recently introduced the Automated and Electric Vehicles Bill (“the Bill”) to Parliament. The Bill is intended to resurrect legislation previously contained within the defunct Vehicle Technology and Aviation Bill (“VTAB”) which is seen as vital to the development and testing of autonomous vehicles on our roads. The Bill also looks to pave the way for the creation of a UK wide network of charging points for electric vehicles. For the purpose of this update we will focus on the provisions for autonomous vehicles.

The Bill

The Bill requires the Secretary of State to create and maintain a list of those vehicles which are designed to or can be adapted to drive themselves in certain situations. Any vehicle which is not contained on this list is not considered to be an automated vehicle and presumably will be unable to be driven in autonomous mode on UK roads.

The Bill creates liability for insurers (subject to the usual rules on contributory negligence), and owners where the automated vehicle is not insured, for damage incurred by insured persons or third parties as a result of an accident where the automated vehicle was driving itself. The Bill defines these individuals as “injured persons.” The Bill also confirms that the insurer and/or vehicle owner are not liable for damage caused to the person in charge of the automated vehicle if the accident occurred as a result of that person negligently allowing the vehicle to drive itself when it was not appropriate to do so. It defines damage as being:

death or personal injury, and any damage to property other than—
(a) the automated vehicle,
(b) goods carried for hire or reward in or on that vehicle or in or on any trailer (whether or not coupled) drawn by it, or
(c) property in the custody, or under the control, of—
(i) the insured person (where subsection (1) applies), or
(ii) the person in charge of the automated vehicle at the time of the accident (where subsection (2) applies).

As well as defining damage and creating liability for insurers (and where the vehicle is not insured, for vehicle owners) it also provides those paying the claim of an injured person to recover those monies from any other person liable to the injured person. That other person is liable to the insurer and/or the vehicle owner to the same extent that it is liable to the injured person. This is a useful clause as it gives insurers the ability to potentially recover claims spend from manufacturers, software developers, and others in the event that it was the technology itself that failed and caused the accident. At the same time, that permitted cause of action does not extend to damage caused to the automated vehicle itself as this is expressly excluded from the definition of damage within the Bill.

The Bill also gives insurers the ability to exclude/limit liability for damage caused to an insured person where the accident was caused solely due to the insured making prohibited alterations to the automated vehicle’s software or failing to install safety critical updates. There are differing abilities to exclude/limit liability depending on whether the insured person was the policyholder or not and whether the insured person knew or ought to have known that such software was prohibited or such updates were critical.

Discussion

The Government has realised following its consultation on the issue that a rolling programme of regulatory and legislative reform is necessary to provide an agile framework for the development and testing of automated vehicles on our roads. The Bill goes some way to addressing legal liability issues but does not deal with the very important issue of data.

In a world of automated and partially automated vehicles, situations may well arise where the driver, the manufacturer, the software programmer or a combination thereof could be ultimately liable for an incident.  In these situations it will be data that will be the deciding factor in the determination of liability. However, with automated vehicles, this data will be collected by the car itself.

Manufacturers already receive data through connected devices installed into their cars and it is this data which will be key in understanding the cause of an accident and in determining liability. Whilst data sharing will inevitably see concerns raised surrounding privacy, confidentiality, data protection and intellectual property, these challenges are not insurmountable. What is clear is that without access to the data collected by automated vehicles, the process of determining the cause of an accident, and whom ultimate liability should rest will be significantly more difficult than if that data is readily available to all concerned. It is therefore our view that consideration should be given for including a mechanism for the sharing of that data with insurers and the necessary regulatory authorities. Whilst the need for legislation could potentially be circumvented through agreements between manufacturers and insurers, third party disclosure protocols and the like, definitive legislation around the issue would seem the best way to cut through such complications.

Can we help?

We will also be keeping a watching brief as the Bill proceeds through Parliament and will report back as soon as there are developments. In the meantime, should you wish to discuss this in more detail, or would like assistance with any other matter, please do not hesitate to get in touch.

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