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Legal expert Mark Hambleton takes a look at how driverless cars might impact upon cyclists' rights on the road

Like it or not, in the next few years we are going to have to share the roads with yet another type of vehicle: the driverless car. Lots of issues arise when we think about the possibility of having driverless cars on our roads. Will our roads be safer? Will it make a difference to traffic and pollution? Should cars even be our primary mode of transport? The one that concerns me the most is how they might affect the rights and safety of cyclists.

In the near future you will be sitting on your bike, waiting at traffic lights, and a car will pull up behind you. At first glance there will be nothing remarkable about this vehicle; the driver will be sitting at the wheel, the engine silently primed in neutral.

Behind the scenes though, an on-board computer will be working through endless calculations. The outcome of which will determine whether the vehicle recognises you on your bike and drives safely around you or ploughs into the back of you.  

Will the driver or the driverless technology be responsible? Is the law changing? 

We already have vehicles on our roads that are fitted with technology to provide drivers with remote control parking, adaptive light control or emergency braking – these are known as Advanced Driver Assistance Systems (ADAS). Despite having a helping hand from these systems, drivers remain in control of their vehicles at all times and they must be insured in the same way that a driver of a car without ADAS is insured.

However, identifying the person or company that is responsible if a driverless car causes an accident is more of a grey area, but important nonetheless should you be unfortunate enough to be hit by one. If you are injured by a driverless car, is it the person using the technology, or is it the company who designed it that’s responsible?

Like most things today, a large part of attributing blame is concerned with recovering financial losses. So, to make sure everyone is clear about vehicle insurance requirements for driverless cars, the Automated and Electric Vehicles Bill 2017 has been drafted. It is currently in the House of Commons. If it is approved, it will go to the House of Lords for further consideration. Ultimately, Royal Assent is required before it becomes new law.

This new law is required to deal with the uncertainty over insurance of driverless cars e.g. who should be insured? Is insurance compulsory? Who will be responsible for an accident caused by an automated vehicle? How many policies of insurance are required? What will this mean in practice? Are there any exceptions to the insurance cover?  

For the time being cyclists are protected? Right?

The current law doesn’t deal with insurance of driverless vehicles. The Government’s proposal is that the current rule of compulsory insurance (as currently required by the Road Traffic Act) is being extended to apply to driverless vehicles i.e. motorists who have a driverless car must be insured.

Under the new scheme, the same insurer will cover both the driver and the driverless vehicle technology. So a cyclist involved in a collision caused by a driverless vehicle won’t be bogged down in a dispute about whether the driver or the technology was at fault.

Assuming the car was being used in autonomous mode, the insurer will have the right to seek recovery of its losses from the vehicle or software manufacturer at a later date if there is evidence that the technology was the cause of the accident.

If cyclists are involved in an accident caused by a driverless vehicle, the starting point is that the insurer will be liable for the loss caused by the accident. On one hand, the position will be as straightforward as it is currently but on the other hand, the position could be far more complicated for cyclists if the insurer withholds cover on the grounds the car should not have been in driverless mode at the time.  

The principle of contributory negligence remains e.g. an injured cyclist will be responsible for the extent that their conduct contributed to the accident and the injuries they suffered. This will be the case whether or not the car was driverless at the time.

What’s the catch?

There are of course a few exceptions, for example if the vehicle owner has failed to install a driverless system update or if they’ve made unauthorised changes to the car’s software. In such circumstances, the insurance will be invalidated. This might seem fair enough but it makes it a lottery as to whether or not the person who knocks you off has been diligent enough to keep up with their software updates. If they haven’t, they will be uninsured form your point of view.

As a solicitor, my main cause of concern when I was reading the Bill is that it says that ‘the insurer or owner of an automated vehicle is not liable….to the person in charge of the vehicle where the accident that it caused was wholly due to the person’s negligence in allowing the vehicle to begin driving itself when it was not appropriate to do so’.  Basically, if the driver puts the vehicle into driverless mode when they shouldn’t, the insurer can withhold cover.

The problem here is that nobody knows when it is, or is not considered ‘appropriate’ to allow a vehicle to drive itself.

Your guess is really as good as mine. Might it be inappropriate when there are cyclists in the vicinity? Or is the technology sophisticated enough to recognise and drive safely around cyclists? What about other factors such as the weather, time of day, location? 

Despite the best efforts of all involved I suspect there will be a range of disputes between vehicle owners and their insurers to determine the answer to this question. This uncertainty is bad news for cyclists who will of course be in a much better position if vehicles are insured and there is no ambiguity over the vehicle insurance cover.   

It is worth bearing in mind the Motor Insurers’ Bureau who compensate cyclists and other road users injured by uninsured and or untraced drivers. It is reassuring to note that I have not seen anything to suggest that the MIB will cease to fulfil this function where driverless cars are uninsured and/or cannot be traced after an accident.

When I think of driverless cars and cyclists sharing the roads, I come at it from the perspective of someone who cycles on a daily basis and represents injured cyclists with their legal cases.

The majority of collisions on our roads are as a result of human error and are entirely avoidable. So, if we take human error out of the question and instead rely on driverless technology, will our roads be safer? We don’t know yet, only time will tell.

The Government fully support the use of driverless technology on our roads. In my opinion the law should be changed to make sure we avoid a situation where cyclists find themselves in the unenviable position of having been the victim of a collision caused by a driverless vehicle only to find that the insurance cover is invalidated because of one of the exceptions included in the current draft Bill. 

 

After taking up cycling to commute between Bristol and Bath, Mark has seen all sorts of incidents and has become a keen advocate for cycling and protecting the rights of cyclists.

Mark is now lucky enough to combine his passion for cycling with his day job as a cycling solicitor at Royds Withy King.

2 comments

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NoSoSlimTim [10 posts] 1 year ago
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I quote: "There are of course a few exceptions, for example if the vehicle owner has failed to install a driverless system update or if they’ve made unauthorised changes to the car’s software. In such circumstances, the insurance will be invalidated. This might seem fair enough but it makes it a lottery as to whether or not the person who knocks you off has been diligent enough to keep up with their software updates. If they haven’t, they will be uninsured form your point of view."

Question: If I am hit by a vehicle where the driver has failed to renew the worn tyres, under the present system is the insurance invalidated?

Or, if I am hit by a car where the owner has fitted illegally tinted front windows, is the insurance invalidated?

I have always presumed the insurance company are always liable for third party claims, irrespective of whether the driver or vehicle were operating in an illegal manner.  Am I wrong?

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Mark Hambleton [7 posts] 1 year ago
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Thanks for your comment.

In short, no - you're not wrong.

In a  little more detail:

Car insurance policies often state that drivers who do not look after their vehicle or make undeclared modifications risk invalidating their insurance policy.

However, The Road Traffic Act 1988 states a car insurance must insure a person in respect of a civil liability that arises out of the use of a vehicle on a road of public place i.e. in a collision with a cyclist.

In the examples you have given, the insurer would almost certainly be required to indemnify the driver and meet your claim.

There are cases that have been decided forcing an insurer to provide cover for a vehicle that had been involved in a suicide attempt. The insurer had sought to withhold cover in that case and failed.  

If the driver is uninsured or fails to stop at the scene then the Motor Insurers' Bureau is the fund of last resort that might meet the claim.