Following the publication of the Law Commissions’ automated vehicles report, Calum McPhail outlines the key considerations as our mobility infrastructure and the insurance market evolve to prepare for this new era of transportation

The recent joint report on automated vehicles produced by The Law Commission and Scottish Law Commission extends to 278 pages, with a further 37 pages of appendices. Despite its length, however, it does provide a welcome insight into the many complexities that need to be understood and addressed as the UK readies itself for the inevitable influx of partially and ultimately fully self-driving vehicles over the next few years.

Thankfully, as with so many technological developments these days, most of us do not need to understand how this ever-developing technology will ultimately enable cars, vans and trucks to drive without the need for a driver (or user in charge). There are, however, a multitude of things that need to be considered as our mobility infrastructure – and in particular the insurance market – evolves to prepare for this new era of transportation.

The joint report considers just about every conceivable aspect from when a vehicle should be considered capable of driving itself safely, through the introduction of new ‘legal actors’, to responsible marketing and legal duties as well as criminal and civil liability.

As with virtually all new technologies being introduced today, whether that be the latest generation smartphone, watch, TV or app, perhaps amongst the most sought after but also the most valuable ‘product’ is the data generated by and through this new technology.

It should perhaps go without saying that the security of data and in particular personal data has to carry the utmost priority and indeed the report does address issues of ‘wrongful interference’, such as system hacking affecting an automated vehicle and its systems and then covers various specific data considerations in some detail.

The Law Commissions’ report is very clear in highlighting the critical need for those controlling AV data to disclose that data to insurers where it is necessary to decide claims fairly and accurately, and to that end it recommends the introduction of a statutory duty of disclosure to that effect. It seems difficult to imagine how an insurer can provide a fair and reasoned assessment of accident circumstances and hence a fair and reasonable outcome for their customer, if there is no access to vital data connected with an incident.

Assuming that this disclosure of data will be mandated, the interesting questions will then be in relation to the data itself:

• What data will be shared?
• When will it be shared?
• Where will it be stored?
• How will it be used?
• How long will it be kept?

The data will be critical in understanding what has happened in an accident involving an AV, to help support the fair and accurate resolution of associated claims, but also from the view of safety for all road users, especially those ‘vulnerable’ road users identified through the new Highway Code hierarchical system. It will be essential that appropriate data is shared to enable any identified safety related improvements to be made, whether that be to AVs themselves or potentially the wider infrastructure that will be required.

Section 13.42 of the report confirms that there are currently no international standards for collision detection systems, but it seems clear that if all manufacturers will be duty bound to share AV data then it will have to be in a common format and compliant to standards relating to calibrated accuracy of the data and ease and consistency of interpretation – if not, then any analysis will become virtually impossible and the data therefore meaningless.

As with any potential road accident dispute, the ultimate recourse is by way of litigation through the court processes. Therefore, any data released will presumably have to be capable of being used as evidence and consequently in a format and to a standard that validates the very accuracy of the data itself and presents it in a consistent and understandable form.

The nature of the data itself will undoubtedly be the subject of much ongoing debate and we can anticipate arguments from all sides that any given data set may be too broad or too narrow and that suggested retention periods will also be too short or too long. Insurers and vehicle users themselves will want to understand what has happened but the vehicle owners/users may be wary of too much of ‘their’ data being shared.

Vehicle manufacturers will want to discourage and avoid potential products liability ‘fishing expeditions’ from insurers attempting to clarify whether a system malfunction might have caused an accident, but there will need to be a balance struck so that insurers are comfortable that they will not have to pick up the cost of every AV accident because they cannot access sufficient data to pursue a manufacturer for product defect. All parties need to recognise that collaboration on this will be essential if a workable AV expansion strategy is to be pursued.

Until very recently, there has been what might only be described as ‘radio silence’ from vehicle manufacturers in relation to any public recognition of the need to share data and, more particularly, the need to recognise and take responsibility for any situations where an AV vehicle system defect or malfunction may be the cause of an accident. Mercedes-Benz appears to have been the first manufacturer to recently announce that it will accept legal responsibility for collisions that occur in its vehicles fitted with the Level 3 Automated Lane Keeping System, or ALKS, when the collision has been directly caused by a fault with its technology. A positive step but certainly highlighting the need for the appropriate data to be shared.

The data will need to validate certain basic components including location; whether in AV mode; speed; direction and detected collision information – will there be a place for dash-cam or other camera footage? Whatever the views at this stage, the Code of Practice on AV data will be vitally important and fundamental in shaping the future model for accident claims involving AVs. Furthermore, any protocols for data sharing will need to provide for that data sharing to happen at the earliest opportunity so that insurers and consumers are not left in limbo waiting for essential data to be delivered to enable liability assessments to be made.

Retention periods for holding the data have also attracted opposing views both from a privacy perspective but also the very real and practical challenges and expense of storing such massive volumes of data. The three years plus three months proposal should be seen as a sensible and pragmatic compromise.

As far as data retention is concerned, it then raises the question of where the data should be stored and who should control access to it. It seems sensible that there be a central repository from which the relevant parties can access the data and this also raises the possibility of building in protocols to encourage early data-sharing and streamline the evidential process and the claims process itself. As previously noted, there will also need to be some fairly stringent security protocols and procedures in place so that all parties can take a suitable degree of comfort that the data, whoever ‘owns’ it, will be safe and secure.

As if this were not complicated enough, the UK cannot stand in isolation in considering these challenges. As we emerge from the concerns and travel restrictions of Covid-19, many of us will once again want to drive to and across continental Europe, whether for holiday or business and similarly many like-minded folk in our European neighbours will want to drive to and throughout the UK. As we move into an era of driverless cars, how will all the data sharing and control challenges and considerations we’ve looked at be accommodated across international borders and multiple jurisdictions?

Overall, the challenges are many and complex with strong vested interests on all sides, but what is clear is that there is an opportunity to develop a workable and future-proofed AV data model which can help propel the UK to the forefront of the AV market.

At every turn, the opportunities require a very pragmatic and collaborative approach from government, manufacturers and insurers. We can only hope that constructive discussions are already under way.

This article was published in the May-June 2022 issue of CIR Magazine.

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