Ian Evans, partner at debt and loss recovery business Corclaim, outlines the findings of the Law Commission’s final recommendations for AV law changes and looks at how this is likely to affect fleet managers keen on automatising their vehicles.

Ian Evans, partner at Corclaim

On 26 January 2022, the Law Commission and Scottish Law Commission published their report regarding automated vehicles.

The report outlined recommendations of law reform to include:

• The introduction of an Automated Vehicles Act
• Clarity between self-driving and driver aided vehicles, with the subsequent distinction between driver and user in charge
• Regulation for data to be made accessible for investigations into liability and fault
• Regulation for marketing

So what does it all mean for fleet operators?

The benefits of autonomous vehicles to fleet operators is clear – from a cost perspective, there are huge savings to be made from vehicles that do not require human monitoring. In the fullest sense of automation, this will result in human resource reductions and, even in the scenario where a human driver is not required for at least part of the journey, it might mean redeployment of resource and subsequent efficiency savings.

It is also true that a move to autonomous driving should eliminate or at the very least reduce road traffic collisions and, even in situations where they occur, it would be unlikely a user or fleet operator becomes negligent. That should have significant financial savings in terms of insurance cost, although it would to some extent be offset by the increases in vehicle purchase and maintenance costs associated to the technology.

What might the implications be for a fleet operator?

In the first instance, the introduction of automated vehicles alters the benchmark for liability for road traffic collisions.

Historically liability, or negligence, for a collision would lie firmly at the foot of the vehicle drivers unless there was some kind of vehicle malfunction or other external interference involved.

In a future state and a world of completely autonomous vehicles, there is no driver or at best only a user in charge. Liability therefore can never sit with a driver and in the event of a collision, negligence must fall to the vehicle manufacturer or developer (Authorised Self-Driving Entity). That future state significantly changes the landscape for collision investigations and recovering losses through own damage or third party insurance.

What happens in the scenario that a vehicle is not fully autonomous?

The driver and, by way of vicarious liability the fleet operator, might still assume liability in certain scenarios.

There is a real risk any driver could be operating a vehicle in the belief they are doing so in a driverless function, whereas in reality they are required to assume responsibility to take control of the vehicle in particular situations. That is a potential grey area and it is therefore reassuring the report recommends strict marketing regulations on categorisation of ‘self-driving’.

Even still, in a driver-aided vehicle there is a scenario where liability could rest with a driver or vehicle manufacturer – did an incident arise because of driver fault or because of technology failure. Even in the latter scenario, should the driver have taken control and thus will they still assume liability?

Maintaining a fleet

Many fleet will utilise an in-house capability to maintain or repair their vehicles. To maintain such a capability in an autonomous world would require a significant investment to upskill the team and upgrade tools/machinery to keep up with the technology. Would a manufacturer even allow such a position and if they did, surely thereafter any liability for malfunction would shift to the fleet operator?

For further consideration there are the implications of managing a workforce using varying levels of autonomous vehicles. The responsibilities for driver training shifts significantly and it’s likely to require a fluid approach given the staggered implementation of such technology. HR involvement would need to be flexible enough to keep up with driving standards policies and best practise of self-driving versus driver aided vehicles. Managing internal records of driver qualifications and ability to drive (or use) vehicles of differing specifications becomes somewhat more complex too.

The report recommendation for vehicle/incident data to be available is interesting also, would there be a requirement for a fleet to have staff trained and available to analyse such data? Where a vehicle is driver aided, who is analysing the data to assign negligence?

In summary, there is no doubt the world is moving to vehicle automation and, whilst the potential benefits are there to claimed, there are still many associated risks and it is too simplistic to assume autonomous vehicles eliminate human accountability for road safety. It is an exciting time for anyone involved in the industry but also one where we need to remain fluid and open minded regarding the changing environment.