Eliminating the Grey Areas of CAV Insurance

The UK government is taking some positive steps forward with regard to addressing some of the great areas of connected and autonomous vehicle (CAV) liability and insurance.

That’s the view of the global law firm Clyde and Co. These include government support for a clear bright line test between human driver control and true self-driving, as revealed in its report, Connected and Automated Mobility 2025: realizing the benefits of self-driving vehicles. It is also known as CAM 2025.

In the report the UK government says it will engage in further consultations to consider how to manage the retention and sharing of data with insurers for claims investigations and for work with the Motor Insurers’ Bureau on a solution for uninsured self-driving. There is also a need to consult on how the government will engage more widely to comprehend how product liability law might need to be.

In an article for Reinsurance News, Alistair Kinley, Clyde & Co’s director of policy and government affairs, was quoted saying: “This report is good news. It demonstrates that the UK government has reached two key conclusions. First, the Law Commission’s guidance on how to build a new, safety-focused, legal framework for autonomous vehicles should be adopted. Second, handled effectively, the introduction of autonomous vehicles onto Britain’s roads by 2025 would be a major technological win for the country.”

More detail required

However, speaking to TU-Automotive, he says he doesn’t think the government’s report resolves anything. There is more detail to follow about what operators of automated driving systems (ADS) must submit and about how data is disclosed to insurers where appropriate for them to meet their obligations under AEVA 2018.

CAM 2025 is informed by the Law Commission and it put onus on operators to disclose data to insurers and specifies that automated vehicles are required to provide for the storage, retention and disclosure of data to get clearance to go onto the road as a part of the new pre-market authorization process. So, they are seen as being absolutely critical recommendations.

Kinley adds the insurance regime for autonomous vehicles is established by the Automated and Electric Vehicles Act 2018 (AEVA). It makes the automotive insurer liable for injury and damage caused by a vehicle whenever it is driving itself in autonomous mode. However, complications can occur whenever the insurers who’s paid out for a claim wishes to recover its losses from “an entity or organisation that designed, marketed or maintained the automated driving system involved in the accident”.

Education and data

Jonathan Fong, senior policy adviser of general insurance at the Association of British Insurers adds that there is a need for user education about the differences between the automated technologies on the market. They include drive control assistance systems (DCAS) and automated lane keeping systems (ALKS). Both are similar technologies but they have their differences. So, users need to know what they are to ensure that they are used appropriately. “DCAS is an assisted system which requires the user to maintain sight of the road, while ALKS is considered an automated system that allows the user to conduct certain secondary tasks,” he explains.

The ability to access relevant vehicle and collision data to determine liability in incidents involving an automated vehicle is also critical. He comments: “The ABI has been in discussions with the government and various other stakeholders to resolve some of the remaining challenges to data sharing, but a framework has not yet been established. These issues will need to be addressed before automated vehicles can be safely adopted and consumers can have confidence in operating these vehicles.”

Clear bright line test

Meanwhile, how does the ‘clear bright line test between human driver control and true self-driving’ work and what is it? Kinley says it’s a binary test that considers whether a human driver is in charge of the vehicle and driving it at any point in time, or whether the autonomous or automated driving system is in control. This determines who or what is liable from an insurance perspective, and therefore who is legally responsible for the dynamic driving task.

He explains: “If there’s a handover between driver and machine (or vice versa), the one handing over the driving task will be deemed to retain control until the handover process is completed.” He says the 2018 Act defines self-driving via an autonomous or automated driving system as the vehicle “operating in a mode in which it is not being controlled, and does not need to be monitored, by an individual”.

Uninsured driving

There is also a need to find a solution for uninsured driving in the context of connected and autonomous driving. The Motor Insurers’ Bureau (MIB) is currently working on one. Kinley says this is about a compensation solution for uninsured automated driving, which is needed because “AEVA 2018 imposes strict liability only where there is insurance in place and present MIB arrangements kick in only where there is a human driver involved”.

“Neither of those applies if an uninsured AV is driving itself and hence the gap and the need for a new solution. The Law Commission noted that “It was said to be unfair to treat the victims of uninsured AVs less favourably than the victims of other uninsured vehicles. We agree and recommend resolving the issue before the first vehicles are authorized as having self-driving features.”

Grey areas: eliminated?

So, how have the grey areas of CAV insurance been eliminated? It appears it goes too far to suggest that they have been, thinks Kinley. Nevertheless, he commends CAM 2025 for setting out a “comprehensive process and timetable for government and key stakeholders to work collaboratively to put in place the necessary fine detail on safety principles, pre-market authorization and post-sale or in-use monitoring”. Critically, he says it also addresses the data-sharing and insurance issues associated with the safe deployment of automated vehicles on roads in the UK.

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