Published: 17 March 2017
Author: Ryan Carlisle Thomas

Self driving cars and the future of road injury claims

Self driving and autonomous vehicles in Victoria

Self driving autonomous vehicles have been grabbing headlines for a while, but recently more intensely as manufacturers (including Tesla) progress their prototype testing. In Victoria, Tesla and Bosch's combined effort was reportedly ready for real-world traffic as of mid-October 2016. As lawyers, this recent progression begs the question: what does it mean for the future conduct of personal injury claims in Victoria?

Despite our best efforts, no technology is perfect; technology does, and can, fail. On 7 May 2016, Tesla’s 'autopilot' mode did just that to Joshua Brown who died when his Tesla Model S sedan collided with a semitrailer truck on a Florida highway in the United States. The semitrailer turned left in front of Brown's Tesla at a non-traffic light controlled intersection. The Tesla failed to stop.

For injured road users, there are a few issues that need to be raised in the pursuit of any personal injury claims.

Who pays the lump sum, the TAC or the manufacturer?

If autonomous vehicles are to become mainstream in society, disputes may arise in some cases as to whether the Transport Accident Commission (TAC) is liable to pay any claimant lump sum damages, or a product liability insurer for the manufacturer is liable to pay lump sum damages instead.

The factual circumstances of an event are often open to interpretation, and an expert in the reconstruction of the causes of collisions will likely be required to determine who ought to respond to any client involving autonomous vehicles. Disputes on liability are likely to become an issue for the Court just before a trial begins and it may mean that Plaintiffs’ legal costs will increase markedly in cases where these disputes arise taking into account the late stage at which these arguments are likely to arise; this is not to say this is likely in every case, however.

Any argument as to who pays a claimant’s damages may bring about technical disputes, which will change the way a case is prepared.

Rather than collecting witness statements from those involved in the crash, it will become necessary for us to obtain technical data from the manufacturer and/or their insurer to ascertain what went wrong; this is likely to require some form of expert technical guidance.

What’s the future of TAC claims for injured transport users?

Provided no substantive amendments are made to the definitions of a transport accident in the legislation, the mainstream introduction of autonomous vehicles should only affect claims for lump sum damages if you satisfy the criterion that you have suffered a ‘serious injury’ within the meaning of the law. In pursuing these claims, you should always have legal representation to ensure you get what you are entitled to.

As the law currently reads, regardless of whether an autonomous vehicle is involved in a collision or not, benefits are payable to injured transport users pursuant to the provisions of the Transport Accident Act 1986 (Vic) by the TAC. This ensures that at least your medical expenses and any time off work because of your injuries are covered by the TAC and you do not have to pursue any claims against manufacturer(s).

What should you do if you’re injured in a transport collision? 

There are a few critical things you must do:

1. Seek appropriate medical treatment – your health should always come first;
2. When practical/possible, make a claim to TAC by telephoning 1300 654 329 and speaking with a claims officer;
3. Seek legal advice.

If you are injured in a collision that was caused by the driving of a motor vehicle (can also be a bus, tram or train), or arises out of the use of a motor vehicle, you (or a family member) should always take note of details of the collision, wherever possible.

These vital details can prove helpful and occasionally critical in any claims made in the future which are years following the accident and memories begin to fade over time. In some instances, documentary records can be scarce. Details to note include:

• The date, time, location of the accident and the weather conditions at the time;
• The details of all parties involved in an accident, but particularly any negligent driver(s);
• The general circumstances of the accident. In other words, whether the responsible driver speeding or driving dangerously and how so, or were there poor road conditions that contributed to the accident; and
• The details of any investigating police members who attended the scene.

You should lodge your claim within 12 months of the accident to avoid any disputes; you cannot lodge a claim more than 3 years after the accident. For those under 18 years of age, you have until the day before your 21^st birthday to lodge the claim. Nonetheless we recommend you lodge your claim as soon as possible. 

Finally, get some advice! It’s always best to get legal advice early so you know your rights with regards to your claim.