The Government has recently indicated that they are intending to consult on changing the law in the near future so as to allow level three automated vehicles on the road, writes David Withers of Irwin Mitchell.
There are six levels of automation:
Level 0: The driver performs all of the tasks associated with driving the vehicle;
Level 1: Some driving features are included but the driver controls the vehicle;
Level 2: The vehicle has automated functions but the driver must monitor the environment and be ready to take control at all times;
Level 3: The driver is a necessity but does not need to monitor the environment at all times;
Level 4: The vehicle can perform all driving functions under certain conditions;
Level 5: The vehicle can perform all driving functions under all conditions.
The proposed consultation is likely to see level 3 vehicles being allowed on the UK roads, in addition to levels 0, 1 and 2 vehicles.
The call for evidence will look at the Automated Lane Keeping System (“ALKS”) – an automated system that can take over control of the vehicle at low speeds, keeping it in lane on motorways.
Drivers may be able to “delegate” the task of driving the vehicle. ALKS can keep a vehicle within its lane and control its movement for extended periods of time.
However, at all times, the driver must be able and ready to resume control when promoted by the vehicle or in an emergency situation.
Transport Minister Rachel Maclean said: “Automated technology could make driving safer, smoother and easier for motorists and the UK should be the first country to see these benefits, attracting manufacturers to develop and test new technologies.
“The UK’s work in this area is world leading and the results from this call for evidence could be a significant step forward for this exciting technology. Following the approval of ALKS Regulation in June 2020 by the United Nations Economic Commission for Europe (UNECE) – of which the UK is a member – the technology is likely to be available in cars entering the UK market from Spring 2021.
“The government is acting now to ensure that regulation is ready where necessary for its introduction”.
The Government’s call for evidence will ask whether vehicles using this technology should be legally defined as an automated vehicle, which would mean the technology provider would be responsible for the safety of the vehicle when the system is engaged, rather than the driver.
Under the Consumer Protection Act 1987, a manufacturer is strictly liable for any damage caused “wholly or partly” by a defect in a product.
In addition, the manufacturer may be liable for a breach of contract and / or negligence, albeit the breach would have to be proven, as a breach of contract and negligence do not (in usual circumstances) attract strict liability.
Under the Automated and Electric Vehicles Act 2018, if damage is caused by an automated vehicle when driving itself, the insurer would be liable for the damage.
There is currently uncertainty due to a gap in the legislation whether an insurer or a manufacturer would be liable in circumstances when damage is caused partially by an automated system and partially due to driver error.
It may be the case that both the manufacturer and the driver could be held liable.
Personally, I think it is fantastic that the UK is keen to lead the way with automated vehicles. However, any further automation of vehicles must be carefully considered.
Automation can lead to complacency amongst drivers. If Level 3 automated vehicles are allowed on the roads, the driver does not need to monitor the environment at all times. The Government has suggested that level 3 vehicles may be allowed on motorways and other roads subjected to a 70 miles per hour speed limit.
Although there will of course be extensive testing, we know that products including those designed to automate the driving experience can and do fail.
I would urge the Government to ensure that we adopt an incremental approach to any automation of driving vehicles so as to discourage complacency and increase the risks that we face when driving on the roads.
In addition, I think provision should be made to ensure that the legal framework insofar as insurance and responsibility is clear.
David is a partner and solicitor-advocate at Irwin Mitchell LLP , leading a team specialising in neuro-trauma and other serious injuries such as amputations or significant poly-trauma.
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New sentencing guidelines in focus
Irwin Mitchell’s Angela Batchelor on changes which come into force this week affecting offenders with neurological impairment, mental disorders or developmental disorders.
From tomorrow (1st October 2020) practitioners welcome new guidelines for sentencing adult offenders who, at the time of their offence and / or sentencing, suffer from any neurological impairment, mental disorder or developmental disorder.
While the prevalence of such conditions amongst offenders has been identified as an issue for some time, the previous lack of any formal guidance around sentencing left a void in the sentencing process in which such complex conditions were often ignored or dismissed.
The guidelines seek to redress this lacuna and are reflective of the broader efforts across society to understand and de-stigmatise such conditions.
The guidelines stipulate that “the fact that an offender has an impairment or disorder should always be considered by the court, but will not always have an effect on sentencing”.
Each case will be fact specific and an individualistic approach to sentencing is encouraged, taking into account the wide range of disorders and the varying levels of impairment between individuals.
A formal diagnosis is not always required and sentencers are urged to consider common issues, including: fluctuation of conditions, the fact that some impairments or disorders are not easily recognisable, the interplay of different conditions and the fact that the offender may be unaware or unwilling to accept that they have such an impairment or disorder.
These issues resonate loudly in relation to ABI / TBI cases, where complex cognitive, psychological, emotional and behavioural effects of a brain injury can be difficult to detect, are often hidden, but have devastating and permanent effects on an individual.
The progressive tone within the guidelines continues by highlighting the importance of taking into account relevant cultural, ethnicity and gender considerations – together with the potential stigmas that may be attached to each.
The culpability of an offender is to be considered in the first instance in accordance with offence-specific guidelines. Consideration should then be given to whether that culpability is reduced by reason of the impairment or disorder.
Culpability “will only be reduced if there is sufficient connection between the offender’s impairment or disorder and the offending behaviour”.
The question of what amounts to a “sufficient connection” will no doubt be one that comes before Courts many times in the future.
It is for the sentencer to make an assessment of culpability taking into account all relevant information, but they are not bound to follow any expert opinion that is obtained during this process if there are compelling reasons not to do so.
The sentencer will need to consider whether the impairment or condition effected the offender’s ability to exercise appropriate judgement, make rational choices or understand the nature and consequences of their actions.
The impact of any disinhibition, medication (including “self-medication”) and the offender’s insight (or lack thereof) are all relevant to such considerations.
Where the impairment or disorder is linked to the offence, then it may be relevant to the decision about the type of sentence imposed, the length of any custodial sentence, or the assessment of whether an offender is considered dangerous.
For less serious offences, the Courts can impose a range of sentences including: criminals fines, community sentences, mental health treatment requirements or drug and alcohol programs.
The guidelines say that in cases where a custodial sentence is to be considered, “the impairment or disorder may make a custodial sentence disproportionate to achieving the aims of sentencing, and that the public are better protected and crime reduced by a rehabilitative approach”.
It is the role of the sentencer to ensure that the offenders themselves are able to understand their sentence and the consequences of re-offending or breach of its’ terms.
It is yet to be seen whether there will be any discernible effects on sentencing behaviour as a result of these guidelines, but taking this step towards ensuring greater fairness and transparency for all involved in the criminal justice system is clearly one in the right direction.
Angela Batchelor is a senior associate at Irwin Mitchell LLP.
Traumatic brain injury vs psychological injury
By Alice Hall, serious injury solicitor at Irwin Mitchell.
Neurocognitive deficits caused by traumatic brain injury (TBI) can be one of the more challenging injuries to prove and as a Claimant solicitor; it is my client who bears the burden of proving every aspect of their injuries and resultant losses.
I have seen that it is often the case that mild TBIs are just one of many injuries, whilst other injuries may present as far more life-threatening, particularly during the emergency stage of treatment.
Sometimes, therefore, mild TBIs are either not fully diagnosed at the outset, or they are noted but are not treated as a priority in comparison with other more seriously recognised injuries at the time, which may be more obvious and more pressing.
Claimants are often then discharged from hospital with their physical injuries having been treated and follow up arranged for Occupational Therapy input and Physiotherapy, but with no neurological or neuropsychological investigation or follow-up.
This is then often further complicated by the subtle ways a mild TBI can manifest itself. For example, they may cause issues such as dizziness, fatigue, tinnitus, loss of smell or taste, difficulty concentrating, multi-tasking or changes in mood or personality.
Sometimes, these issues are picked up only by family members or friends; with the symptoms being so subtle that they go unnoticed by the injured party themselves, particularly when they are focused on recovery from their more obvious physical injuries.
I have had Claimants approach me following a serious injury and it is only at that point through my discussions with them that the possibility of a TBI is first explored, and that can be something which can be quite shocking and upsetting for an injured person to first consider.
In proving such an injury, expert evidence, particularly neurological and neuropsychological, will obviously be key.
The difficulty is often that, in the absence of objective evidence of a TBI shown for example by way of day-of-injury imaging, expert evidence must be unequivocal in determining the presence of any TBI or otherwise, which of course is not always possible for a variety of reasons.
However, in recent years, there have been reports regarding seemingly exciting new technologies that have been developed with the aim of gathering objective evidence regarding the presence of TBI.
For example, there has been research into the use of ‘Diffusion Tensor Magnetic Resonance Imaging (DR-MRI)’ – which evaluates water movement within the brain to locate brain cells that are not functioning properly – which has been shown to provide objective evidence of TBI.
There have been other developments for example, specific blood tests which may measure plasma-based metabolomic biomarkers, which have been shown to indicate elevations in metabolites in individuals who have suffered TBI when compared to non-injured control participants.
Matters can be further complicated in litigation if, once expert evidence is obtained, the waters become muddied with suggestions of there being overlying psychological components to what is suspected as being a TBI, or potentially experts being of the opinion that the symptoms complained of are entirely psychologically based.
Of course, when Claimants have been through trauma, it is not uncommon that they will present with some sort of psychological injury in addition to their other injuries.
The difference – whether the presenting symptoms are caused by TBI or some psychological component – is essential in many respects. First and foremost, the treatment that the Claimant will be recommended to address any neurocognitive deficits that they present with, must be recommended in line with its underlying cause.
Failing this, a Claimant risks undergoing potentially lengthy, costly and challenging rehabilitation which may turn out to be wholly inappropriate to their condition.
Secondly, the quantification of damages is also influenced heavily by the nature of the injury, both in terms of the PSLA (pain, suffering and loss of amenity) element of the claim, which refers to the sum of compensation that a Claimant is awarded to compensate them for having suffered the injury itself.
This element of any award is guided by a set of guidelines which include brackets of awards for every injury and, within that, a range of severity.
Whether such neurocognitive deficits are presenting as a result of TBI, or psychological injury, or a combination of both, will determine which section of those guidelines, and which bracket, a Claimant will be assessed under, hence influencing the ultimate award that they receive.
Further, thought must also be given in any personal injury claim regarding what other losses a Claimant has, or will, suffer as a result of their injuries e.g. loss of earnings, care, case management, rehabilitation, aids, equipment.
Again, the nature of the injury will permeate all other aspects of the quantification of the claim, particularly if, depending on the nature of the injury, the experts consider that the prognosis is significantly different in either scenario.
The danger in this situation would be that a Claimant would be at risk of either being significantly under or over compensated, which would of course be entirely inappropriate.
Whether such deficits are caused by TBI or psychological elements will potentially have a significant impact on a Claimant’s long-term prognosis, and therefore the compensation to ensure that they are adequately compensated to reflect whatever their future needs look like.
For example, it is widely accepted that there is an increased risk of various serious long-term medical conditions, including epilepsy and dementia, in people who have suffered TBI.
One recent study concluded that there was more than a two-fold increase in the risk of dementia in those with TBI, even in those who did not suffer any documented loss of consciousness at the point of injury.
Of course, the costs involved if either of these conditions materialise are potentially huge. This is often addressed in litigation by way of provisional damages. Provisional damages allow greater security for Claimants if there is a chance in the future that may develop some disease or serious deterioration in their condition.
This provides the Claimant with an option to return to the Court to seek a further sum of compensation if they do indeed deteriorate significantly after the original claim has been settled.
This is in contrast to the normal course whereby a personal injury claim is settled in “full and final” terms, meaning that there would be no scope to re-open a case and pursue additional compensation should the injured person’s injuries or condition significantly deteriorate beyond what had originally been envisaged.
After a life-changing injury, such as acquired brain injury, it can be tempting for the injured person and their loved ones to want to ensure that they get as much of the best quality rehabilitation that the state can provide or that money can buy, writes Irwin Mitchell’s David Withers.
This is because it is generally accepted that the greatest recovery is made in the first few years, particularly in the case of acquired brain injury.
When an individual sustains a traumatic brain injury, there are a range of disciplines that may need to be involved including, but not limited to: physiotherapy; occupational therapy; neuropsychology; neuro-psychiatry; neurology; neuro-surgery; dietician / nutritionist; speech and language therapy; personal trainer; counsellor; and support workers. The injured person’s passion for rehabilitation is absolutely vital. If and when that goes, it can be very difficult to regain that motivation. Mind-set in rehabilitation is critical.
A case manager’s role is to co-ordinate the rehabilitation. This includes introducing therapists at the right time. An injured person’s goals and aspirations must be identified.
The case manager and the injured person and their family must then formulate a rehabilitation strategy, focussing on what will make the greatest difference.
In the author’s experience, achieving a major goal will build momentum, leading to smaller goals being achieved rapidly thereafter. If a case manager overwhelms the injured person with too much rehabilitation, they will become disengaged.
Every rehabilitation programme will be different, rightly so as it should be tailored to the injured person’s needs. However, generally speaking, it is often sensible to rehabilitate the physical limitations through physiotherapy and the cognitive and emotional changes through neuro-psychology initially.
After progress has been made, an occupational therapist can be introduced, potentially to assist with returning to work or identifying strategies to maximise independence insofar as possible.
Another important factor is ensuring that the rehabilitation feels like it is part of “real life”. An injured person may have spent months in hospital. Although there is of course a time and a place for rehabilitation at home or in a clinical setting, in the author’s experience, injured people generally want to be able to return to some sense of normality insofar as possible quickly after discharge.
This means that the rehabilitation specialists need to fit around that person. Effective rehabilitation is about identifying goals, creating an exciting plan, monitoring progress and achieving them. This leads to momentum, motivation and the desire or passion to keep getting stronger. If rehabilitation is likely to be a long-term need, the integration of the package into real life is particularly important.
The author has experience of representing a severely injured person who was interested in pubs and bars. He had the capacity to make these decisions. The support team, working with the speech and language therapist, facilitated him being able to go.
They were able to educate him about the risks of consuming alcohol (again, which he had capacity to make decisions about), and work with him, in real-time, on his engagement with others.
He was able to return to doing something that he was passionate about. This made him more engaged in the less “real-life” rehabilitation sessions that he was having at the time.
David Withers is a partner and solicitor-advocate at Irwin Mitchell LLP, leading a team specialising in life-changing injuries including severe traumatic brain injury, spinal cord injury and amputations.