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Initial observations on the publication of the report:
The Law Commission of England and Wales and the Scottish Law Commission have today published a joint report, making recommendations for the safe and responsible introduction of automated, ie self-driving, vehicles. One key aspect of the recommendations focuses on the certainty about who or what is legally responsible for the operation of an automated vehicle. Is it the person or the system? It’s going to be critically important to answer this very clearly in order to avoid any ambiguity or confusion for drivers and other road users first and foremost but also and for insurers and vehicle manufacturers.
The recommendations highlight the need for a new safety agency to oversee the development, technical standards and pre-market authorisation of automated vehicles. It’s not only crucial that they function correctly, but also that consumers are provided with accurate information about what the vehicles can and cannot do. Messages about vehicle capabilities are sufficiently important for the Law Commission to recommend that it should be an offence to describe something as self-driving if it hasn’t been authorised to do that.
In addition, following today’s report we may now see a shift away from negligence-based civil liability - ie looking at the conduct of a human driver - towards strict liability of motor insurers under the Automated & Electric Vehicles Act 2018 (AEVA). As regards criminal law, a car driving itself will still need to conform to the existing rules of the road, so if those are breached in automated mode then the criminal sanction or regulatory offence would be down to the manufacturer or software firm because the technology would not be functioning as it should.
In the event of an accident, it’s going to be vital that police, investigators and anyone dealing with claims has open access, as soon as possible, to the data from the vehicle. This way we’ll know what it was doing at the time of the accident. If it was being driven by the system, then under AEVA the insurers will be obliged to indemnify their own insured driver in respect of personal injury and damage with the prospect of recovery from the vehicle manufacturer for any defect in the automated driving functionality.
Clyde & Co will provide a full analysis on the recommendations in due course. In the meantime, the full report is available here.
*This content was written by BLM prior to its merger with Clyde & Co*