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Standing Committee on Industry, Innovation, Science and Resources
Driverless vehicles

MINOGUE, Ms Katherine (Katie), Associate, Road and Work Injuries, Maurice Blackburn Lawyers


ACTING CHAIR: I welcome the representative from Maurice Blackburn Lawyers. Thank you for giving evidence today. The committee appreciates your participation in this inquiry. Although the committee does not require you to give evidence under oath, you should understand that this hearing is a formal proceeding of the Commonwealth parliament. Giving false or misleading evidence is a serious matter and may be regarded as contempt of parliament. I remind all witnesses here today that in giving evidence to the committee they are protected by parliamentary privilege. This hearing is public and is being recorded by Hansard. Would you like to make an opening statement before the committee proceeds to questions?

Ms Minogue : Thank you, yes. We at Maurice Blackburn certainly see that there are a number of potential benefits from the introduction of driverless vehicles in terms of safety and convenience; however, we recognise that there are a number of challenging issues that must be overcome with their rollout, including legal questions regarding accidents and viability, ethical issues related to vehicle programming, and regulatory issues related to data that is generated by the vehicles. So our starting point is that the introduction of automated vehicle technology not reduce the legal rights of any individual on the road to be able to access support and compensation if they are injured. We say it would be unfair and poor public policy to create a second and lesser class of liability and protection for those travelling in automated vehicles and more generally for those involved in accidents that involve automated vehicles.

In relation to data, we say that consumers need protection and guarantees in terms of how their data is handled and kept, that there be standards on the use of that data and that in the event of an accident they not be denied access to relevant event or crash data that is going to help determine liability in an accident. Certainly consumers are going to need certainty and appropriate support and care if they are involved in an accident that involves an automated vehicle. It is really important that people have confidence in that in terms of their acceptance and uptake of the technology.

We already have forms of automation on the road, as it is. The SAE international standard sets out the six levels of driving automation distinguished based on the level of operation of the human operator. And for the purposes of our submissions that is certainly the language and taxonomy that we have adopted, which is consistent with the National Transport Commission and other relevant bodies in terms of how they classify the levels of automation. It is certainly what I will be referring to today in terms of the level 1 and 2 technology being existent in some on-road models today. These include things like adaptive cruise control and auto lane changing and emergency braking. Levels 3 to 4 represent that mode where there is the option for the vehicles to be running in a driverless mode or completely autonomously, but with the operator ready to step back in when and where required. Level 5 is for fully automated vehicles that are capable of operating completely on their own.

You will certainly have expert advice on the number of years or decades to come until there will be a mix of vehicles on our roads, and we know we will see vehicles with that level 5 technology in the near future. But how many years is not quite clear at this stage. As accidents involve multiple vehicles and there will be a gradual rollout of the technology, we say it is critical that there is a clear and consistent regime of insurance and care for those with injuries on the roads as that rollout occurs.

Our really key position is that the liability insurance regime that we have needs to be clear, understandable and consistent for everyone on the road. We have national consistency now regarding catastrophic injuries on our roads, which is great. People get the support they need while maintaining their legal rights. We have submitted that personal injuries resulting from transport accidents involving autonomous vehicles must be covered by the same road accident injuries scheme as personal injuries resulting from transport accidents involving only non-autonomous vehicles. There is a number of important reasons for this, the first of which is ensuring consistency of protection for those injured on the road. Whether someone is injured by a vehicle operating in autonomous or non-autonomous mode, it is really vital that they are treated the same way, and I have used the words 'operating in autonomous or non-autonomous mode', because, as you are aware, cars may have multiple levels of automation capacity as we progress. For example, a level 3 or 4 vehicle will involve a car transitioning between the automated system controlling the driving task and a human driver controlling the driving task. So it would not be desirable if differential outcomes in relation to support, compensation and rehabilitation were made based on arguments around the split seconds between changing control of a vehicle from the system to the human.

Further, as I alluded to before, there will be a gradual rollout of the automated vehicle technology, and that is likely to mean that we have autonomous and non-autonomous vehicles operating on the road at any given time. We say it would be artificial, opaque and unfair to deal with some injuries caused on the road under one scheme while dealing with others differently based on the level of automation of the vehicle involved causing that injury.

In relation to the importance of a consistent scheme, we say that product liability law was not intended to deal with the very serious nature of injuries that occur on the road. We have compulsory third party schemes in most states providing rehabilitation and care for those who are injured. They do not get this care under consumer law actions, and certainly not in the same way. While some manufacturers have given commitments regarding accepting all liability for accidents caused on the road, there is no specific legal basis behind that. And pursuing that may represent an arduous, long, complex and expensive process for consumers and ultimately result in less care and support for them. Our position is that people injured in transport accidents should not be penalised for the involvement of an automated vehicle in an accident.

We also talk in our submissions about the important consideration in questions of liability and the injured person's ability to access crash data like the immediate black box data after the accident. We think it is very important that there is a streamlined and cost-efficient mechanism to access that data, just to rationalise the process of insurance claims and also to reduce the impact of protracted and complicated litigation on the public purse, if there is a tussle over how to get that data.

Finally, we talk about the introduction of technology that makes decisions regarding our safety, which presents great moral and social challenges for us. An example is the case of the unavoidable accident, which certainly goes back to that philosophy 101 trolley problem and how the vehicle should be programmed to react in the event of an unavoidable accident that is going to injure at least one person. We just say that it is really important that consideration is given to vulnerable road users in the regulation and governing of those programming decisions. It is crucial that manufactures of that technology are not automatically assigned the decision-making power. And it is really important that it is a conversation in which society also participates in and that vulnerable road users have a voice in also. Managing people's concerns and building a social licence will be really critical in introducing this technology.

ACTING CHAIR: Do we have any lawyers with us? No? Good! That is pretty unusual for federal parliamentarians. How refreshing! I have had an experience of being a vulnerable road user in the last couple of days. It certainly sharpens your mind to how dangerous it is out there for other road users when big, heavy, fast moving vehicles get around. I share your concerns as I am sure we all do.

To provide some context, is there an international example you could use to describe some of the concerns out there, maybe from another country that has a higher degree of these vehicles already on the road? Could you talk about any solutions to those issues that have come about due to litigation?

Ms Minogue : There has not been, and it is interesting because the first death caused by automated vehicle technology occurred last year in America in a Tesla. Certainly, the National Transport Commission equivalent over there—I think it is the national transport safety authority—have had a high level of involvement in pursuing the outcomes of that case and making sure it is closely followed. But certainly, as yet, that has not been litigated. So as far as I am aware there has not been any specific litigation as a result of injuries caused by automated vehicle technology. But, certainly, following that case closely I imagine there will be some legal outcome as a result of that.

ACTING CHAIR: I remember when ABS started to come online, someone said, 'I crashed because I hit the breaks and freaked out and didn't know what to expect'. What has happened in that space since then in terms of who was found to be responsible in those situations?

Ms Minogue : That is interesting. You are right, because ABS is the start of a continuum that has evolved through to cruise control and now we have adaptive cruise control and lane keep assist and the auto-reverse parking. We can see ourselves progressing along that continuum towards full autonomy.

There has been some case law in Victoria in particular not to do with the technology within the vehicles. In Victoria, to have an accepted TAC claim which entitles you to all of the attendant benefits of medical and related expenses—weekly payments if you cannot work, lump-sum compensation if you are permanently injured—you need to have been injured as a result of the driving of a vehicle and the key word is 'driving'. There has been a fair bit of case law around, for example, involving people stepping on and off buses, people who have their vehicle in 'park' mode and step out and the car slips out of park and drops into reverse and whether those are considered to be driving and, therefore, whether people are captured under the transport acts and its scheme.

We have prepared submissions in particular to the National Transport Commission involved in these decisions too around how does that analogise to situations involving automated technology? For example, if I am sitting in a car that is using adaptive cruise control and Lane Keeping Assist, technically I should have my hands on the wheel but really I am not driving the car; the car is driving itself. If another car were to swerve into my lane, and if my car, in an effort to avoid that car swerving into my lane, swerved into the side of the road and I injured myself—I have avoided a fatal collision because the car has avoided that other car but I have hit a bollard and I have broken my arm—at the moment, that is unlikely under our current legislation to be considered 'driving'; therefore, that would result in one of those inequities that we are talking about in someone being covered under the Transport Act, which is rightly in place to protect people who were injured on the road. So we think it is really important to look at expanding the definition of 'driving' in related CTP claims across the country to make sure that the legislation captures accidents that involve automated vehicle technology so that there is not an inequitable result.

Mr BRIAN MITCHELL: And is your concern that, currently, to make a claim, it would be considered under product law? Is that right?

Ms Minogue : Yes, that is right.

Mr BRIAN MITCHELL: If you would not mind explaining, what is the difference? If you are driving the car and you hit the bollard, you get to claim under TAC.

Ms Minogue : Yes.

Mr BRIAN MITCHELL: But assuming it is legal to drive in Victoria without your hands on the wheel, and the automated car hits a bollard and you injure yourself, currently you feel that you may have to sue someone under consumer product law—the car manufacturer, I take it. What is the difference?

Ms Minogue : In Victoria and across the country, a lot of the states and territories have a no-fault scheme that has varying levels of protection for injuries incurred on the road regardless of who is at fault. In Victoria, that person who is involved in that accident would be entitled to statutory benefits which include the payment of medical and related expenses, their weekly payments if they cannot work and lump-sum compensation if they are permanently and seriously injured over a certain threshold. If that was not considered to be driving and they were subject to the consumer law, they would really only be able to make a case if they could show that accident occurred due to a defect in the vehicle or the negligence of the vehicle designer. In the example I gave, they probably would not have any protection at all because the vehicle has done the right thing—it has avoided the oncoming car and prevented the more serious injury—so they would essentially be left under the public system. It might be a slightly different case if there was no vehicle merging into that lane and the car had made a mistake, if the programming had been flawed and that was what caused the accident. In that case, they may well have a case under Australian Consumer Law to make a case either in negligence or in a defective product against the manufacturer of the vehicle.

Mr BRIAN MITCHELL: Do you have a view as to how the law might need to change to wrap in automated driving? How complex would that change be?

Ms Minogue : I do not think it would be overly complex. I think it would be a pretty simple expansion of the definition of driving as it exists for whatever the coverage is in each particular state, including motor-vehicle accidents within the third-party insurance scheme to ensure that includes automated driving systems. It would be relatively straightforward. I do not think it leaves much room for ambiguity. It does not open any floodgates. The beauty is that we are very likely to see fewer accidents due to increased safety.

Mr BRIAN MITCHELL: Given that we have had driver assist of various modalities for some time, this cannot be a new thing for regulators to come across. Has there been resistance to change? To your knowledge, has anybody proposed a change to date; and, if so, has there been resistance to that?

Ms Minogue : My specific knowledge in this area is around the Victorian legislation, but I can come back to the committee with a more national summary, if that is appropriate and relevant. Within the Victorian context, an expansion has not been proposed. The expansion that we have had over the last 15 years has included things like car-dooring accidents for cyclists; accidents caused by trains, trams and buses; and accidents caused by buses opening and closing their doors. And they have all been, essentially, responses to cases that have come before the court that have influenced the legislation—

Mr BRIAN MITCHELL: Have you had many cases involving people reversing with the vehicle camera?

Ms Minogue : No, none have really come before the court. It is interesting: I, too, thought there may have been cases, given we are already along this continuum, that involved someone getting a bit preoccupied when they are in cruise control and an accident occurring. But nothing has been specifically—

Mr BRIAN MITCHELL: It might point to the fact that it is safer to drive with driver assistance. Thanks.

Mr TED O'BRIEN: I am reading the part of your submission that talks about the importance of access to data. Unless I have missed it in my speed read here, you talk about access but not ownership of data. Do you have a view on who should own data that comes from an automated vehicle that is very empowered, technologically, to capture the most enormous amount of data?

Ms Minogue : Our area of expertise and our main position is in relation to the use of that data. In terms of ownership of the data, we say that it is probably a question for experts but that consumer concerns are really important. It is vital for people to be part of that conversation in terms of who owns their data and where that data goes. One of the issues we point to in our submission is around personal data being accessible by software companies and consumers feeling empowered in terms of how that is accessed and used. Without having a definitive position on the issue, we think it is really important consumers have a voice and have power, and that it is not totally in the hands of manufacturers and software companies in terms of where that data goes.

Mr TED O'BRIEN: I have a couple of definitional questions. When you say 'early access to data', what do you mean? Also, 'vulnerable road victims'—the word vulnerable is used a little bit, and, Chair, you said you were a vulnerable driver last week. It might just be me, but what is the difference between a road victim and a vulnerable road victim?

Ms Minogue : 'Vulnerable' is a term taken from the National Transport Commission's taxonomy and their framing of the issues. The vulnerable road user is one who is less protected—pedestrians, cyclists, motorbike users. Essentially, they are people on the road who are not inside a driverless vehicle and have less protection on the road.

In terms of early access to data, from our perspective and our area of expertise and from what I see every day, when an accident does occur and it is the fault of another party—whether that is another road user, a manufacturer or, in cases such as these, a software provider because there has been some defect or problem that has caused the accident—it is really important, when making a common-law claim for damages for that kind of negligence, that both parties are in an equitable position when it comes to putting their case forward in any tortious claim for negligence. Early access to data is vital to make sure that the manufacturer does not have total control over the information that the black box holds and that they cannot hold on to it and say, 'We're not giving you access to it because that's our property.' It is really important, for someone who is subject to the decisions of that vehicle, that there be a transparent and efficient process to access that data if something goes wrong, because down the track, if there is a case where the manufacturer or the software provider is at fault for an accident that has caused someone serious injury, then they do have a right to make a claim, and, in order for them to be in a fair position to do so, they need to have had access to that data.

Mr BRIAN MITCHELL: On that note, when we went to see the Bosch car, we heard anecdotally that a gigabyte per minute of data is what they get. Somebody has to store that data. If you are talking about months and months of data, who is responsible for storing it, who is responsible for paying for it, and how long do they store it for?

Ms Minogue : There are some serious logistical considerations around it—no doubt about that. That probably goes to the point about early access being vital. If someone has been in an accident and if there is some mechanism and a really streamlined process for storing that particular data, it actually is much more efficient than going back 12 months later and trying to mine enormous amounts of data for something that is quite specific.

Dr McVEIGH: Thanks for your presentation. If you do not mind, I want to go back to some of the basics of the conversation with Mr Mitchell a moment ago about liability and so forth. Pardon me if I am oversimplifying this, and please correct me if I am wrong, but I want to try and get an understanding of the transition that we are moving through. I imagine it would be easier to consider these issues if we forecast into a 100 per cent autonomous vehicle future, with no drivers involved and no steering wheels but just equipment. Many people say that will never happen; others suggest that might be the future. If I am a passenger in a vehicle, even if I own it, and it has no facility for me to engage in driving it, I would go down the track of Consumer Law against the manufacturer if there were an accident that caused me injury. Would that be a fair assumption?

Ms Minogue : That is right. If the law remained the way that it is today, that is exactly right.

Dr McVEIGH: At present, if I jump into a taxi or a bus or a tram, where I have no control over the driving of it whatsoever, and an accident occurs and we can prove it is the driver's fault, then a third-party compulsory scheme, for argument's sake, would provide us with a pathway forward for claims. Alternatively, if we can prove it is the equipment at fault, we again go down the Consumer Law track. Is that right?

Ms Minogue : Yes. The Consumer Law track is in addition to your rights under the various compulsory third-party schemes. So, yes, if there is negligence on the part of a provider or if there is negligence on the part of another driver, you have common-law rights to sue for damages under the Transport Accident Act. If it is negligence on the part of a manufacturer, it is under the Consumer Law. But, yes, you also have some no-fault entitlements, which are specific to being injured on the road, which will apply in any of those situations.

Dr McVEIGH: The issues and concerns that you are raising are very much to do with this transition that is happening before our eyes. For example, your suggestion to focus in on the definition of 'driver' is all about this uncertainty as to what is evolving in front of us.

Ms Minogue : Yes. We certainly think a couple of things there. Yes, it is really important that we do not have uncertainty and that people are treated equitably, but we also think that it is really important that these compulsory third-party schemes are in place. We think that the very nature of injuries sustained on the road differentiates them from other public liability or product liability claims in that they are inevitably more serious and that cars are more dangerous. That is why we have these schemes in place: to ensure people usually have additional protections if they are injured on the roads. We say that is something that is important not only for it to be consistent but also for that protection to remain in place.

Mr TED O'BRIEN: I understand the argument for certainty and consistency. As it currently stands, is the treatment very different? If you try to go the Consumer Law route, is that going to typically result in a different outcome?

Ms Minogue : Yes. Under most of our schemes where there is protection—again there are differences state to state—there is no-fault protection. That means you get the benefit of medical treatment paid upfront, which is of great benefit to people. There is also, in most states, additional immediate access under these schemes to payment of wages if you cannot work, which makes it much easier for people in the short term. With the states that have the no-fault schemes, that is obviously regardless of whether there has been negligence on the part of another party or not. Under the Australian Consumer Law you get one go at it, so you can make your claim—you have to make out all the elements of your claim for damages under the law—but you do not get access to any of that ongoing care that you get under some of the other schemes, and it comes in a lump sum, which means that you would be accruing your expenses. It is shaped differently. In terms of the amount that you can claim, you can claim less under the Consumer Law than you can under the Transport Accident Law, so you are, ultimately, not as financially well off.

Mr TED O'BRIEN: If I am right, Dr McVeigh's question was around that transition period. Let us say the transition is over and the only state of environment is driverless vehicles. What then? Does it go back to claims only under Consumer Law, or do you just have it sitting separately where you have redefined 'driver'?

Ms Minogue : Our position is that it is really important for consumers to have that additional protection. Again, based on the nature of road accidents, they are more serious than other types of public liability or product liability incidents and injuries that are caused. We certainly have a scheme in place at the moment, which is fantastic, for catastrophic injuries, and the uniformity of that across Australia is something that is of wonderful benefit to people who are catastrophically injured on the roads. So we certainly think it would be of benefit to have a scheme in place for people who are injured on the roads in this future scenario where cars are fully driverless; but, ultimately, we think the most important thing is that the system is consistent.

If we are imagining a future where all cars are driverless, there would certainly have to be consideration given to that transition period, to the fact that some people will still be receiving the benefits from a time or a period when we have had a mixed model. I do not have a simple answer but I think it is really important that whatever system we get to when we get to that fully driverless future it takes into consideration that injuries on the road are always going to be more serious than injuries caused by other products. If it is the parliament's position that that continues to require a system and a scheme that supports people in a more comprehensive way than a consumer law then we would support that.

Mr BRIAN MITCHELL: Is the TAC-style personal injury system nationally consistent, as far as you are aware?

Ms Minogue : It is quite different from state to state. There are different schemes across the states—as I said, the uniformity has come with the approach to catastrophic injuries—for example, the Northern Territory has an entirely no fault based scheme. Some of the other states have just a fault based scheme, so they do not have no fault entitlements. For example, in New South Wales, you get a small amount for medical expenses and then you can make a common law claim, if someone else is at fault.

Mr BRIAN MITCHELL: One of the key things we have heard across a number of witnesses is the importance of national uniformity. Which of those schemes do you have a view on? Which of those schemes would be the model to follow, if there were to be a national scheme?

Ms Minogue : With the rollout of driverless cars, our imperative is obviously that the consistency comes from the treatment of people injured by autonomous technology versus non-autonomous technology. So rather than altering CTP schemes at their most fundamental level—

Mr BRIAN MITCHELL: Just insert—

Ms Minogue : that driverless technology is not treated any differently.

Mr BRIAN MITCHELL: So, for now, insert 'driverless' into the various state schemes and then worry about a national scheme later?

Ms Minogue : Exactly.

ACTING CHAIR: Katie, thank you very much for taking time to attend the hearing and giving us evidence today. It is very much appreciated.

Proceedings suspended from 15 : 18 to 15 : 31