A cautionary tale - trials of automated vehicles on Victorian roads

Changes to the Road Safety Act which were passed by the Victorian Parliament last month pave the way for more automated vehicle trials in Victoria. In light of the death caused by Uber’s self-driving car in Arizona last week, it is both timely and important to consider the particular issue of personal injury insurance coverage for anyone injured by an automated vehicle.

Recent amendments to Victorian legislation

On 27 February 2018 the Road Safety Amendment (Automated Vehicles) Act 2018 came into effect. While autonomous vehicle testing has previously been permitted on particular Victorian roads such as CityLink and EastLink, the Act now allows VicRoads to grant permits to allow autonomous vehicle trials on public roads across the state.

At Maurice Blackburn, we have been strongly advocating for safety and fairness for all road users in the rollout of automated vehicle technology. In the consultation phase for the amendments to the Road Safety Act, we submitted that autonomous vehicles must be appropriately insured so that any road user injured by an automated vehicle is no worse off than if they were injured by a human-operated vehicle. 

Issues of liability

When an automated driving system is performing the driving task, it is important that there is certainty around where responsibility will lie if something goes wrong. We are pleased that the new legislation makes it clear that responsibility is transferred from the human driver to the trial permit holder in these scenarios.

Concerns around insurance

Whilst we are pleased that the new legislation makes appropriate personal injury insurance a prerequisite for obtaining a trial permit, we are concerned that permit holders can select from several types of insurance including public liability insurance, product liability insurance and self-insurance.

This is in contrast to the status quo for traditional vehicles where the Transport Accident Commission (TAC) administers a compulsory third-party insurance scheme so that there is one consistent insurer for road users who suffer personal injury. Under the new legislation insurance requirements for automated vehicles are different to those for traditional vehicles.

It would be a strange and unfair result for a person injured in relation to a transport accident involving an automated vehicle to discover that an entirely different kind of insurance applies than the standard road accident schemes for all other transport accidents. A road user injured in an accident involving an automated vehicle may also be, in effect, penalised by virtue of the automation level of the vehicle involved.

This is equally true for other states and territories. Insurance regimes differ from state to state, but the important thing is consistency for the consumer between accidents involving automated vehicles and other transport accidents within that regime – regardless of what that regime looks like.

In Victoria, allowing permit holders to insure their vehicles with their choice of independent insurer is concerning for the following reasons:

  1.  The TAC has developed protocols that ensure fair and efficient administration of the Victorian road accident injury compensation scheme. These protocols do not apply to other types of insurance. If a road user is injured in a transport accident involving an automated vehicle, the involvement of an independent insurer may result in additional legal costs, delay and more lengthy litigation and disputes.

  2. The consequences of a transport accident are unique in many regards. Motor vehicles are inherently dangerous, primarily due to the speed at which they travel, their mass, their weight and the high level of day-to-day contact with the public.  Independent insurers who deal with anything from household products to travel insurance lack the necessary expertise to properly and sensitively deal with the unique issues presented by injuries resulting from transport accidents. For example, in response to the recent Bourke Street tragedy, the TAC deployed teams to Melbourne’s major trauma hospitals and set up a specific team to assist those who suffered injuries in the incident. These claims were handled in an efficient and sensitive manner and it is unlikely that this would have occurred across a number of independent insurers.

  3. The TAC’s link to the Victorian Government places it in a unique position to approach issues of road safety and in a holistic manner. Where the TAC recognises a particular trend in transport accidents, their dual role allows them to produce campaigns aimed at reducing that particular risk to road users. If automated vehicles can be insured by independent insurers, the TAC loses its ability to maintain close involvement in issues of road safety.

The introduction of autonomous vehicles to Australian roads is an exciting opportunity that will hopefully lead to positive safety outcomes for road users. However the change must be carefully navigated. At Maurice Blackburn, we will continue to advocate for a clear system that prioritises the rights and safety of all road users, particularly the most vulnerable.

TOPIC: Road rights
RELATED LEGAL SERVICES: Car accidents

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