The recent case of a great-grandmother and a “runaway” Nissan Qashqai raises interesting issues for car manufacturers and insurers alike. In this article, health and safety and product liability experts David Beckenham and Antony Colman look at what lessons can be learned from the incident.
Mrs Ann Diggles was charged with causing death by dangerous driving when her Nissan Qashqai lurched forward, mounted the pavement and fatally injured a pedestrian. The Prosecution alleged that she had accidently applied the accelerator rather than the brake. Mrs Diggles’ defence was that a defect in the car had caused it to accelerate on its own.
Nissan flew over an engineer from Japan to give evidence that there was no such defect. The Prosecution’s case was undermined when two independent drivers gave evidence that they had experienced a similar situation with their own Nissan vehicles. This was sufficient to raise a “reasonable doubt” in the jury’s minds and they acquitted Mrs Diggles.
Following the acquittal, Nissan commented:
“The verdict does not reflect on the safety of the vehicle. The only issue to be decided in this case was whether the driving of the defendant was dangerous or careless and caused the death of the victim. The Prosecution was unable to prove this beyond reasonable doubt.”
Sudden unintended acceleration is a known phenomenon which can be caused by a variety of factors. It has led other manufacturers to conducted well-publicised recalls. Keystone cannot comment on the evidence in Mrs Diggles’ case. The purpose of this article is to raise two issues in such a case: (1) the remedies of an injured party against the vehicle manufacturer, and (2) the regulatory obligations of the manufacturer or distributor.
Remedies of an injured party against the vehicle manufacturer
A person who is injured by a defect in a product may bring a claim for damages in negligence or under the Consumer Protection Act 1987. Under the Act, the injured person must prove, on the balance of probabilities, the defect, the damage and that the defect caused the damage. The fact that a reasonable doubt was raised in the criminal case does not mean that a defect could be proved in a civil case. That would be a matter for expert evidence.
The regulatory obligations of the manufacturer
Where a manufacturer or a distributor knows that a product it has supplied is unsafe and poses risks to consumers, it must, under Regulation 9 of the General Product Safety Regulations 2005, immediately notify an enforcement authority in writing. The information must include:
a. the action taken to prevent risk to the consumer;
b. the identity of each EU Member State in which the product has been marketed or supplied;
c. a precise identification of the product or batch of products in question;
d. a full description of the risks that the product presents;
e. all available information relevant for tracing the product.
These issues are likely to be amplified once driverless cars appear on the roads. Automated features in motor vehicles range from well-established functions such as cruise control and parallel parking to full self-driving automation. What level of safety are persons generally entitled to expect of such vehicles? What warnings are required? To what extent will the driver be negligent if he/she fails to take control? Will a manufacturer be able to rely on the defence in the Consumer Protection Act that the state of scientific and technical knowledge was not such as to enable a manufacturer of such products to have discovered the defect?