The Government has recently indicated that they are intending to consult on changing the law in the near future so as to allow level three automated vehicles on the road, writes David Withers of Irwin Mitchell.
There are six levels of automation:
Level 0: The driver performs all of the tasks associated with driving the vehicle;
Level 1: Some driving features are included but the driver controls the vehicle;
Level 2: The vehicle has automated functions but the driver must monitor the environment and be ready to take control at all times;
Level 3: The driver is a necessity but does not need to monitor the environment at all times;
Level 4: The vehicle can perform all driving functions under certain conditions;
Level 5: The vehicle can perform all driving functions under all conditions.
The proposed consultation is likely to see level 3 vehicles being allowed on the UK roads, in addition to levels 0, 1 and 2 vehicles.
The call for evidence will look at the Automated Lane Keeping System (“ALKS”) – an automated system that can take over control of the vehicle at low speeds, keeping it in lane on motorways.
Drivers may be able to “delegate” the task of driving the vehicle. ALKS can keep a vehicle within its lane and control its movement for extended periods of time.
However, at all times, the driver must be able and ready to resume control when promoted by the vehicle or in an emergency situation.
Transport Minister Rachel Maclean said: “Automated technology could make driving safer, smoother and easier for motorists and the UK should be the first country to see these benefits, attracting manufacturers to develop and test new technologies.
“The UK’s work in this area is world leading and the results from this call for evidence could be a significant step forward for this exciting technology. Following the approval of ALKS Regulation in June 2020 by the United Nations Economic Commission for Europe (UNECE) – of which the UK is a member – the technology is likely to be available in cars entering the UK market from Spring 2021.
“The government is acting now to ensure that regulation is ready where necessary for its introduction”.
The Government’s call for evidence will ask whether vehicles using this technology should be legally defined as an automated vehicle, which would mean the technology provider would be responsible for the safety of the vehicle when the system is engaged, rather than the driver.
Under the Consumer Protection Act 1987, a manufacturer is strictly liable for any damage caused “wholly or partly” by a defect in a product.
In addition, the manufacturer may be liable for a breach of contract and / or negligence, albeit the breach would have to be proven, as a breach of contract and negligence do not (in usual circumstances) attract strict liability.
Under the Automated and Electric Vehicles Act 2018, if damage is caused by an automated vehicle when driving itself, the insurer would be liable for the damage.
There is currently uncertainty due to a gap in the legislation whether an insurer or a manufacturer would be liable in circumstances when damage is caused partially by an automated system and partially due to driver error.
It may be the case that both the manufacturer and the driver could be held liable.
Personally, I think it is fantastic that the UK is keen to lead the way with automated vehicles. However, any further automation of vehicles must be carefully considered.
Automation can lead to complacency amongst drivers. If Level 3 automated vehicles are allowed on the roads, the driver does not need to monitor the environment at all times. The Government has suggested that level 3 vehicles may be allowed on motorways and other roads subjected to a 70 miles per hour speed limit.
Although there will of course be extensive testing, we know that products including those designed to automate the driving experience can and do fail.
I would urge the Government to ensure that we adopt an incremental approach to any automation of driving vehicles so as to discourage complacency and increase the risks that we face when driving on the roads.
In addition, I think provision should be made to ensure that the legal framework insofar as insurance and responsibility is clear.
David is a partner and solicitor-advocate at Irwin Mitchell LLP, leading a team specialising in neuro-trauma and other serious injuries such as amputations or significant poly-trauma.
