Not autonomous but assisted

News of the first reported driver fatality involving an automated vehicle (while in self-driving mode) has broken in the USA.

Whilst understandably this is causing wide concern, and much comment, it is too early to reach firm conclusions about causes and consequences and any suggestion that this is or could be a “watershed moment” for automated and autonomous vehicles will be premature.

It does however serve to remind us that the highly automated vehicles being developed today are not “driverless”; even if the technology involved is very sophisticated, it is still just a tool for us to use and it has limitations that we – as fallible humans – need to understand.

What we know

According to a police report in the Levy County Journal, the Florida Highway Patrol reported the following accident as having occurred on 7 May 2016:

A tractor-trailer was traveling west on US 27A in the left turn lane toward 140th Court. [The deceased’s] car was headed east [in the opposite direction] in the outside lane of U.S. 27A. When the truck made a left turn onto NE 140th Court in front of the car, the car’s roof struck the underside of the trailer as it passed under the trailer. The car continued to travel east on U.S. 27A until it left the roadway on the south shoulder and struck a fence. The driver [of the car] died at the scene. Charges are pending.

Tesla, the vehicle manufacturer concerned (it was a Tesla Model S), has now reported that the US National Highway Traffic Safety Administration (NHTSA) has launched a preliminary evaluation “to determine whether the system worked according to expectations.” In a statement published on its website on 30 June 2016, Tesla says:

  • The vehicle was on a divided highway with Autopilot engaged when a tractor trailer drove across the highway perpendicular to the Model S.
  • Neither Autopilot nor the driver noticed the white side of the tractor trailer against a brightly lit sky, so the brake was not applied.
  • The high ride height of the trailer combined with its positioning across the road… caused the Model S to pass under the trailer, with the bottom of the trailer impacting the windshield of the Model S.
  • Had the Model S impacted the front or rear of the trailer, even at high speed, its advanced crash safety system would likely have prevented serious injury.

How would this currently be approached in the UK?

The accident location appears, from photographs posted on the web, to be a straightforward dual carriageway intersected by a cross-roads with good visibility in both directions. Any vehicle turning across oncoming traffic in such a location (or any other) has an unequivocal duty to ensure it is safe to do so.

The starting point here would be that, if an accident resulted, the turning vehicle would be wholly to blame and it would not be a surprise if prosecution for causing death by dangerous or careless driving followed.

In a civil claim for damages liability might immediately be admitted but there are occasions when other factors cause it to be argued that the driver with right of way was not completely without responsibility: was he sufficiently aware of the other vehicle, could evasive action have avoided or reduced the effect of the accident, was he in some way careless too?

On the facts of the USA case, a lorry driver here might be tempted to argue that the unfortunate car driver was partially responsible for failing to observe the road and to steer the car, in effect being negligent by relying too heavily on the automated technology or using it inappropriately.

To support such an allegation of contributory negligence would require good evidence, and the innocent driver would want to respond in kind. For many years such evidence could only come from the drivers, other eye-witnesses and such accident reconstruction as the Courts permitted. Now however there will be a potential third source – the vehicle itself.

Event data recording

The statement by Tesla that “neither Autopilot nor the driver noticed the white side of the tractor trailer against a brightly lit sky, so the brake was not applied” suggests that the vehicle’s event data recording system has already been interrogated. The implication is that the driver was not – as is advised by Tesla – maintaining the required level of engagement but to know whether or not that was actually the case requires information we don’t yet have.

A key question for legislators, manufacturers and insurers is the extent to which information stored in a vehicle’s own systems and directly relevant to the circumstances of an accident should automatically be made available to interested parties. Quite rightly, access to such personal data is already strictly controlled but it is logical to think that an innocent driver at least would want to be able to produce any contemporaneous evidence they could if it either supported a claim or defeated a misconceived allegation of contributory negligence.

In the context of the tragedy in the USA, we don’t yet know how the full and complete evidence from the vehicle will turn out; but if this incident does become a turning point for anything in relation to the development of automated and autonomous vehicles it may have more to do with our ability in future to investigate accident circumstances more completely than at present.


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Written by Nick Rogers, partner and head of the BLM motor group

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