Even if autonomous vehicles (‘AVs’) prove to be safer than human drivers, accidents will still occur. The law will need to be able to compensate the victims of such accidents. The current motor accident compensation system within England and Wales is based on the tort of negligence, combined with compulsory motor insurance. Given the compulsory insurance context driver “fault” is assessed at a standard which can tend towards strict liability. This accident compensation system is threatened by AVs. With AV accidents, since AVs are machines not persons, where an AV causes an accident there is no negligent driver, and thus no “driver” to sue. AVs also generate further difficulties for an accident compensation system based on negligence. Due to inherent features of AVs they challenge a number of key tort concepts such as causation, and remoteness of damage. Alternative actions based on product liability, and/or direct duties against designers, maintainers, data-suppliers etc, are not a substitute for the absence of a negligence action against a driver. These actions contain a number of additional legal hurdles when compared to negligence, are also challenged by AVs, are forensically more difficult, and require complex expert evidence. They are also simply not viable as alternatives in low value claims which characterise many motor vehicle accidents. The difficulties AVs cause for tort has been recognised by the UK Parliament. In a bid to get AVs on the road, Parliament has enacted the Automated and Electric Vehicles Act 2018 (‘AEV Act’). It is a pre-emptive, hurried, and sticking-plaster solution. This Act provides victims of AV accidents with a direct, strict liability claim, against the AV’s insurers. In doing so it inadvertently violates technology impartiality (‘tech-impartiality’), (the idea that tort law should not favour any particular technology over another where the risks of harm are equal). However, the AEV Act is more subtle than its drafters and enactors may have thought. Whilst unarticulated in its enactment history the Act co-opts the insurer as an indirect regulator of AVs. This is not simply through differential insurance pricing based on product risks, but also through the role of subrogated litigation. As with any vehicle, insurers will have the ability to monitor accidents, and price insurance accordingly. However, the real value of the AEV Act’s model is the insurers’ subrogated claims. Here insurers have the opportunity to use their litigation expertise, resources, ability to combine claims, and their ability to engage in strategic litigation, which will justify the services of the expensive experts and the litigation resources necessary to pursue claims against AV manufacturers and Big Tech. Nevertheless, the AEV Act does not solve the core problems raised by the tort/AV interface, and simply displaces these problems and places them onto insurers.
CORE (COnnecting REpositories)
CORE (COnnecting REpositories)