Driverless law - beyond 2021

17 November 2021


In 2019 I presented and published about Australian law being slow to address the emergence of driverless vehicles, compared to some overseas jurisdictions such as the UK and Germany (AILA national conference, Hobart, ANZIIF Journal (July 2019) and Insurance News (August 2019) articles). There has been progress. The 2020 KPMG Autonomous Vehicles Readiness Index has Australia ranked 15 out of 30 countries reviewed for overall readiness1.

Specifically, “Australia is one of just four countries receiving the highest score for its AV regulations. Its federal government was early in moving to reform driving laws to enable use of AVs, and this work is continuing through the National Transport Commission’s Automated Vehicle Program”: Automated vehicle program, National Transport Commission (2020). We still need to do more.

At the October 2021 summit on driverless vehicles presented by the peak Australian and NZ industry body ADVI (Aust. & NZ Driverless Vehicles Initiative), I and other presenters, including from Singapore, the US and the UK, addressed where we are today and what the future holds. This article briefly elaborates on key elements that emerged from that summit relevant to insurance and law.

Why driverless vehicles?

Around 93% of collisions are caused by human driver error. In the US in 2020, every day 105 people died on the road due to collisions (data from Carter Stern of Cruise US at the ADVI Summit, sourced from the US government). This was an increase on 2019 despite less people on the road due to COVID-19 restrictions. If driverless vehicles can reduce this toll and provide better access to more environmentally friendly transport then that is worth pursuing.

The potential benefits of driverless vehicles are indeed amazing. Using a combination of systems such as cell technology, cameras, ultrasonic sensors, GPS, Lidar (laser maps), radar, short range radio and onboard computers, autonomous vehicles effectively ‘see’ and respond to danger much faster than an alert driver could ever do. By avoiding collisions and through their efficiency driverless vehicles provide benefits to the community, the following being a selection:

  • Less trauma patients in emergency departments and this helps to target health expenditure to other areas (e.g. COVID-19 management);
  • Families do not suffer death or injury to loved ones to the extent trauma is greatly reduced;
  • Disabled people can better access transport, previously limited by the need for a driver;
  • Environmental benefits from more efficient driving (freight in particular, e.g. using platooning), less congestion (also coupled with benefits of electric vehicles);
  • Business advantages, including efficient and safe deliveries, addresses shortages of haulage and other industry drivers (in the US level 4 trucks will be deployed between 2023-2025 - noting level 5 is fully autonomous, no driver needed: Richard Bishop, 2nd Vice Chair of the American Trucking Association Automated and Electric Truck Study Group, at ADVI Summit).

Whilst the benefits of fully autonomous vehicles are obvious, what is also clear is that in the transition to fully automated vehicles the risks for accidents and injuries exist. These risks need to be addressed by governments, law and insurance to cover the gaps between the advanced technology within vehicles, the infrastructure to support that technology on our roads and of course the effect of less advanced vehicles that remain until made redundant. In Australia another challenge is addressing the significant risk differences between city and rural driving.

Technology has advanced, particularly with advanced driverless assistance systems (ADAS) on conventional vehicles as well as heading closer to fully autonomous vehicles. For example, driverless ride share services - robotaxis - are already available in small numbers in China and in the US (e.g. Motional, Argo AI and Amazon’s Zoox). The NSW government as of October 2021 is investigating robotaxis to be piloted with US autonomous vehicle company Motional (a joint venture between Hyundai and Aptiv).

To some extent infrastructure has advanced but the cost and time investment, by some governments, lags behind the vehicle development. At the ADVI summit Jeremy Nassau (Transurban) helpfully identified what needs to be done to road infrastructure and connected autonomous vehicles (CAV) to get Australia ready for driverless vehicles. The infrastructure is important – sometimes as simple as lane marking. It significantly influences the safety and usefulness of driverless vehicles. But the technology and infrastructure are useless without access to them through a legal framework

Government action

The National Transport Commission (NTC) and Austroads are leading the governments’ role in implementing the use of driverless vehicles on our roads in Australia. Austroads is making headway regarding the necessary infrastructure. The NTC has been covering a lot of territory regarding the legal framework but the last comprehensive policy paper published and authored by the NTC on motor accident injury insurance (CTP) and driverless vehicles, however, dated from August 2019.

The August 2019 meeting of the Transport and Infrastructure Council (Federal and State transport ministers) agreed that all jurisdictions would review the mechanism for CTP schemes to cover for injury and death caused by driverless vehicles, including the ability of insurers to recover from at fault parties. This was to be done within 2 years. Not a lot has happened on this front it seems.

In May 2021 the ministers agreed that the NTC would work with state and territory governments to:

  • develop enforcement practices for automated vehicles
  • establish data requirements and data access protocols for enforcement officers.

This emphasis on states rather than the federal government regarding enforcement issues suggests that the existing state-based approach to CTP legislation would apply with amendments to embrace driverless vehicles (rather than any new federal legislation). We are yet to see any draft legislation. As to enforcement of road rules to driverless vehicles there is a thorough analysis done through the QUT School of Law on 28 July 2021 which put simply (there is more to it obviously) says that enforcement of driverless vehicles is challenging (i.e. the law needs changing), as published on the NTC website here.

Other areas where reform is needed in the future regarding driverless vehicles as identified by the NTC are:

  • Passenger transport legislation;
  • Heavy vehicle regulation;
  • Criminal law (e.g. dangerous driving offences);
  • Road management legislation;
  • Roadworthiness requirements for automated vehicles.2

On the last dot point, the driverless vehicle centre at Cudal in western NSW is the only government run centre of its type in Australia. The Cudal test site is important for driverless vehicle implementation in Australia including in identifying for government some of the relevant data which informs the drafting of necessary legislation (including for example ANCAP tests of driverless vehicles). There are also many other tests being conducted around the country with driverless cars, trucks, buses and other transport. Private manufacturers and software producers also collaborate with government to promote product safety (Cohda Wireless for example had access to the city streets in Adelaide to test their vehicle technology – safely done with conventional vehicles kept away!).

Ethics, Law and Insurance

While governments are developing policy and legislation to enable driverless vehicles, universities and the private sector are also at the vanguard. At the ADVI Summit I was fortunate enough to be on a panel with Professor Tania Leiman, Dean of Law at Flinders University and Steve Cratchley, Suncorp Pricing Manager for advanced technology and future mobility. The discussion focussed on ethical, legal and insurance issues arising from driverless vehicles. As Professor Leiman identified at the summit, the law should encourage safe vehicle use and accessibility, from existing ADAS to eventual full autonomous vehicles.

Accessibility to the technology is important with the vehicles being expensive. Robotaxis and other public transport use of driverless technology will help with this. Whilst testing of public transport application is advanced in Australia this is still yet to reach mainstream use. CTP laws still do not cater for driverless vehicles with the key definition of ‘driver’ needing to encompass the autonomous vehicle technology. If you like, the solution may be to recognise robots as a legal entity just like people and corporations. The regulation of entry into the market is needed with standards for manufacture. Road rules and criminal law also need to be addressed. To insure the risk, the pricing of insurance policies covering driverless vehicles needs data. Data sharing from manufacturers and easy access to international data is necessary. Local data is also key and the driverless vehicle centre at Cudal is a useful source.

Privacy concerns also arise as to who owns the data, who is responsible for the security of the data and, relevant to litigation, who has the right to disclose it.

Once data is known then difficult questions of fault can be addressed. For example, was a collision caused by the human driver who did nothing once alerted to the danger by the autonomous vehicle? Did that alert work properly or was there a software failure? Was the software properly upgraded when the manufacturer advised of the upgrade? This example could be extended but it can be seen the key to underwriters being able to price the risk is data. Other issues surrounding fault and foreseeability exist and are not addressed here but also impact on insurance.

The insurance challenge relates to both personal injury and property damage. As Steve Cratchley has noted, the risk will shift from individual driver to vehicle, technology and manufacturer as more vehicles have advanced driver assistance systems. Product liability coverage will need to encompass the autonomous vehicle and indeed insurers will need to frame and price policies across a range of potential new risks, perhaps more familiar in the world of cyber insurance than for traditional motor vehicle policies3.

More to do

To enable the benefits of driverless vehicles to be realised in Australia we need to consider many things, including:

  • That we are not the dumping ground for redundant technology, particularly as we are not manufacturing vehicles anymore;
  • The progress from driver assistance to full autonomous vehicles needs careful management as many risks emerge;
  • Communication and education to enable people to use the technology safely rather than just assume the technology will do everything for them – one day it will but until then …

Without the legal framework to allow driverless vehicles we are prevented from benefiting from their use. There is still more to do so perhaps in one respect it is a good thing that the law has not caught up with the technology until some of the issues raised above are addressed.

3 See J-A Tarr, AA Tarr and AJ George, ‘Autonomous Vehicles: Regulatory, Insurance and Liability Issues’ (20211018) 49(3) Australian Business Law Review 171.

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