On 3 January 2018, a local bus crashed into and demolished a bus shelter on Flemming Way, when the driver lost control as they prepared to move away from the stop. More by luck than judgement, nobody was killed or seriously injured – but the incident provides a useful case study to explore how Product Liability Law works.
By chance I was working in Swindon on the day of the accident – which occurred at the end of the evening rush hour. Walking back to my hotel after delivering a Product Liability Training Course, I arrived on the scene as the recovery crews were starting work. So, as a ‘curious onlooker’, with no role in the investigation – let me share my thoughts with you.
As shown below, on Flemming Way buses pull into the bus stops at an angle to the road, facing the bus shelters, and when they are ready to depart they swing out to rejoin the flow of traffic.
The Wiltshire 999s website’s report of the accident includes a contemporary eye witness account, first published that evening:-
Michelle, 21, a passenger on the bus is reported to have said:-
“We’d only just got on the bus and as it was leaving, it crashed. All of a sudden, it got really bumpy and I didn’t know what was happening. Then the bus smashed through the bus shelter we got on at.
“After it crashed into the shelter, the driver told us that he didn’t really know what happened – he just lost control. I was with my mum at the time and it was absolutely terrifying.
“It was quite difficult to get off the bus too, the windscreen was smashed into the bus and there was loads of glass all over the floor.”
Despite the dramatic scene, luckily, no one was injured during the collision.
Who should care?
In Law, we all have a Duty of Care, which means that we must take reasonable care to avoid and prevent loss or injury that is a reasonably foreseeable result of our acts or omissions. When we fail to exercise our duty of care, we are said to be negligent, and may be held liable for any harm that is caused by what we do..
In this incident, we can identify several individuals and organisations with a Duty of Care to prevent injury to the passengers and other members of the public. These include:-
- The driver, who is expected to use reasonable skill and judgement when driving, taking action to avoid known hazards encountered on the route. However, as he in an employee of the operating company, they are liable for any acts of negligence committed in the course of his employment – under the legal principle of ‘Vicarious Liability’.
- The bus operating company is also expected to manage and maintain the vehicle fleet in a ‘safe condition’ – while establishing a ‘safe system of work’ with adequate driver training, and monitoring of their drivers’s on the job performance.
- The vehicle manufacturer is required to develop a design that meets our reasonable expectations of safety and ensure that vehicles supplied to operators are ‘correctly built’, using an appropriate quality management system. This includes the need for design validation and production process controls to detect any potential defects, or errors, in the product design or manufacturing process.
Industry standards such as IATF 16949:2016 – Quality Management System Requirements for Automotive Production and Relevant Service Parts Organisations, and ISO 26262:2011 – Road Vehicle Functional Safety, provide a structured approach to risk management in vehicle design and development. These standards are normally used to help vehicle manufacturers satisfy their Duty of Care – but the devil will always be in the detail of their application to particular products.
Claims for Negligence
In order to bring a successful claim for negligence, the ‘victim’ must show that:-
- They suffered a loss or injury as a result of the defendant’s actions
- Their loss was reasonably foreseeable, and could have been anticipated by the defendants.
- The defendant had the opportunity to prevent the loss by taking reasonable care, and failed to do so
The loss suffered is a matter of fact and will depend on the particular circumstances of the accident. Victims can only claim compensation for the losses they actually experienced, so in this case we may expect modest claims for minor injuries – including ‘whiplash’ – as well as the ‘shock and trauma’ they experienced. However, an hour earlier when other people would have been waiting in the shelter – we could have been looking at multiple claims for death or serious injury.
The problem of ‘unintended acceleration’ is a known issue within the automotive industry, because previous incidents have been reported involving a variety of vehicles, including cars, trucks and busses.
While some of the previous accidents have been attributed to driver error, others have resulted in product recalls to correct defects introduced during vehicle design and production, or maintenance processes
Other recently reported, and more serious incidents, of ‘unintended acceleration’ in the UK bus fleet include:-
- Loss of Control in Coventry, on October 2015 – with fatalities
- Loss of Control in Reading, on 27 June 2017 – with personal injuries
Vehicle manufacturers and operators therefore have a Duty of Care to learn from these incidents, and act to minimise the chance that they will recur – by improving vehicle design and manufacturing processes, as well as providing driver training – to address the specific risk of unintended acceleration,
The questions to be answered during any investigation and any subsequent litigation include:-
- Did those with a Duty of Care do enough to prevent the ‘foreseeable risk’ of unintended acceleration materialising?
- Were their actions to prevent and mitigate that risk appropriate and reasonable, considering what was known at the time?
- Who, if anybody, failed to exercise their Duty of Care?
In order answer these questions we need to examine the particular circumstances of the accident, and develop a theory of failure that explains what happened to cause the bus to accelerate and drive over the bus shelter. Alternative theories may include:-
- A malfunction of the vehicle control systems
- Driver error
- An incapacitated driver
Finding the causes
If called, the police may check for substance abuse to see if the driver was incapacitated by drink or drugs. But, as a general rule the police will only investigate the circumstances of the accident if they suspect a crime has occurred or they need to prepare reports for the coroner. In Civil Litigation the parties must find the evidence themselves – and disclose it to one another through the process of discovery.
Investigators normally start by collecting witness statements, and collating available evidence – which may include local CCTV and dash-cam footage or in vehicle video if available, as well as any physical evidence
The investigators will preserve and examine the physical evidence, looking for clues that explain what happened. This may require forensic examination of vehicle components and any data logged or retained within the control systems, and when possible attempting to replicate any suspected vehicle faults during functional tests of the control system.
In traditional mechanical systems, a loss or change in performance may be caused by a physical change or difference in components, that can be revealed by examination. You may for example see that the accelerator pedal return spring is missing or broken – and understand the effect that would have on vehicle performance.
However, electomechanical systems that incorporate micro-processors and software may be vulnerable to intermittent faults or error conditions that occur as transient events – leaving no tangible evidence of the ‘failure’. These errors and fault conditions – often triggered by a specific combination of inputs to the system – may be difficult to identify or replicate under test conditions.
For example, a recent recall in the United Stated – NHTSA 18V-613 involved an intermittent fault with the vehicle brake light activation as described below:-
For the recall population, the brake light may activate if there is a transient voltage on the brake input line (e.g., without further brake input), but can be returned to normal operation when a brake input is applied and then removed. Whelen (the producer) determined that the root cause of this condition was tied to a transient voltage on the input line creating a false and steady activation of the brake light.
The condition is dependent on the specific wiring of the vehicle and other installed equipment.
The product functions normally if it is not exposed to these specific conditions, but the condition has the potential to occur in the entire recall populationNHTSA Safety Recall 18V-613
As the system may return to normal after the error has occurred – leaving no tangible evidence – and will only malfunction again when subjected to the same ‘unknown trigger event’, it may be very difficult to replicate or demonstrate during post crash functional tests.
So, as a curious onlooker, let me propose a thought experiment, and speculate that:-
- There is a similar defect in the bus’s accelerator control system, and that an unidentified, random, transient event can cause the system to malfunction, erroneously commanding full power when the driver’s foot is not – in fact – on the accelerator pedal.
- Let us also assume that the ‘full power command’ is maintained until the accelerator pedal is depressed, or the system switched off.
- And that the the system returns to it’s normal operation when the accelerator is depressed or the system switched off – clearing the fault.
Then let us ask:-
- In that scenario, how would the vehicle behave, and what would the driver experience?
- What tangible evidence of the failure could we find during a post crash inspection or functional test?
- Is this scenario incompatible with any of the physical evidence or witness statements?
- If so, how could we identify the source of the initial transient event and mitigate it’s effect?
I think this thought experiment illustrates the problem faced by engineers called to investigate such crashes – who may, or may not, find the true cause of the accident.
As the vehicle designs become complex – with many interconnected systems – there may be a growing risk of an unexpected system malfunction, The risk may also depend on the specification of the particular vehicle, and any optional equipment fitted – as suggested by the problems with the brake light in NHTSA recall 18V-613
Investigators may use fault finding check-lists – incorporating lessons learnt from previous incidents – as well as design and process FMEA’s to suggest lines of enquiry. But the investigation will be subject to time, resource and budget constraints, and may not ‘find the problem’, even if is there is one to find.
However, if the investigation confirms that a ‘malfunction of the control system’ was responsible for the crash, the manufacturer would be expected to consult with the regulator, DVSA, about the need for a product recall under the industry code of practice.
But when the investigators are unable to find or replicate any control system failure – or find any evidence of component faults, then their attention will inevitably focus on the behaviour of the driver – and the possibility of driver error.
Can we eliminate driver error?
One potential cause of driver error is ‘Pedal Confusion’ – when the driver applies pressure to the wrong pedal – for example accelerating instead of braking. In 2011 Transport London (TfL) published a report Identifying Solutions To Pedal Confusion in Busses – which investigated how the number of incidents of unintended acceleration might be reduced by improving the ergonomic design of the driving environment and changing operating procedures.
The TfL report does not quantify the number of incidents that occur in the London area, but suggests that there may be significant under reporting of the problem, due to the fear of blame. Accidents that result in property damage or injury are reported for insurance purposes – but there is no motivation for drivers to report ‘near misses’ – when doing so may result in disciplinary procedures.
The authors of the TfL report note that:-
- ‘Pedal Confusion’ is a form of unconscious error and “Many drivers involved in these incidents remain convinced that their foot was on the brake pedal”. This may reflect people’s reluctance to accept that they have made a mistake, or that faults in the vehicle control system are not always found – leaving innocent drivers blamed for undiagnosed vehicle faults and defects.
- At that time (2011), the reporting system within TfL did not enable them to identify the scale of the problem as “data and reports had not been categorised in a way that allowed the identification of incidents attributed to unintended acceleration and detailed reports were not available from TfL”
The failure to collect and collate data about incidents of unintended acceleration, treating each incident as an isolated event, hindered TfL’s investigation, which relied on anecdotal evidence from interviewees instead of objective data.
Although the TfL report suggested a number of ways the incidents of unintended acceleration might be reduced, it did not fully evaluate those ideas or make any specific recommendations.
However, claimants may argue that vehicle designers and operators who failed to consider and attempt to prevent or mitigate pedal confusion, a known and documented risk, failed in their Duty of Care and were therefore negligent.
The lack of systematic reporting and data gathering about the fleet of busses in London and nationally, also:-
- Makes it harder to identify ‘common features’ of incidents that may suggest a technical malfunction was responsible – rather than driver error.
- Means that the effects of improvements in vehicle design and driver training can not be evaluated against current levels of performance.
- The incident rate in different types of vehicle can’t be compared, to identify potential risk factors associated with the design and specification or condition of vehicles in service.
In the longer term the introduction of ‘connected vehicles’ may provide significantly more data about vehicles and any accidents that occur – but extracting information from that data requires particular skills and the ability to ask the right questions.
I am not involved in the investigation of the Swindon bus crash or other incidents discussed in this article. But, as far as I am aware, no official report into the investigation into the Swindon crash has been published – so I remain a curious onlooker.
If the investigation had identified a malfunction of the vehicle control systems as the cause of the accident, then the manufacturer would be required to notify the regulator (DVSA) and conduct a product recall – to prevent other vehicles experiencing the same problem. As there is no record of any relevant recall, we may presume that no blame has been attributed to defects in design or production, so far.
In the absence of any identified ‘vehicle faults’ the accident will probably be attributed to ‘Driver Error’ – and the driver may face disciplinary procedures or prosecution for driving without due care and attention.
Fortunately the passengers on the bus were shaken, but suffered no significant injuries – so any claim for compensation will be modest. In this case they may claim against:-
- The operator because they failed to establish a safe system of work, and as the driver’s employer they are responsible for his negligence.
- The vehicle manufacturer, if they can identify any vehicle faults or defects that caused the crash.
Pursuing a claim against the operator, based on the drivers apparent negligence and lack of care is less challenging for the claimant, because they do not need to identify or prove that any defect in the vehicle design and construction caused the accident. However they could take action simultaneously against the operator and manufacturer if defects in design or construction are suspected.
Given the complexity of diagnosing a system malfunction, private individuals would require the help of a subject matter expert to build their case against the manufacturer. For many claimants this may be prohibitively time consuming and expensive, discouraging them from pursuing trivial Product Liability Claims. However, the cost may be justified on a risk – reward basis for larger claims – or if the operator argues in their own defence that their driver was not negligent – because the vehicle the was defective in the vehicle design and construction.
Unless a vehicle defect is found, the operator will probably be found liable for the driver’s lack of care. For their insurance company an ‘out of court settlement’ at an early stage in the legal process would minimise the costs of litigation and claims administration, allowing any claim to be settled in months rather than years.
Out of court settlements are also justified, when the loss is not disputed and defending the claim is unlikely to succeed. They also have the advantage that there will be no public record of the claim or the evidence on which it may have been based.
Our curiosity about this case may never be fully satisfied as the arguments are unlikely to be tested in a court of law – but unless those responsible for building and operating busses exercise their duty of care more effectively – before long there will be another, perhaps more serious case. When that happens, those responsible may be found negligent or face criminal prosecutions – because the still haven’t learnt from this and other previous incidents.
Notice to Readers
- Stunell Technology is an engineering and management consultancy and we do not provide Legal Advice. This article is based on information in the public domain which may be incomplete and inaccurate. We strongly recommend that you take legal advice before taking and form of legal action.
- To arrange Product Liability Training for your engineers and managers, please contact Stunell Technology.