A look at Smart, or all-lanes-running motorways and the risks for insurers. This insights piece is by James Power, member of the Forum of Insurance Lawyers’ Motor Sector Focus Team and Partner at Horwich Farrelly and Nisha Hodges, Senior Associate at Horwich Farrelly.
Smart motorways present an increasing challenge for insurers who need to be aware of the different issues at play. That particularly relates to liability and the opportunity for recovery. Smart motorways are here to stay (for now), so will no doubt feature in more and more claims. The statistics from National Highways show:
1. Motorists are three times more at risk of being fatally or seriously injured following breakdowns on a smart motorway without a hard shoulder.
At least 79 people have been killed on smart motorways since they were introduced in 2010 with many more suffering major or minor injuries.
Smart motorways were designed to ease traffic flow, with some using the hard shoulder as an extra lane. They’re fitted with technology and features not seen on conventional motorways such as emergency areas (EAs) set-back from the carriageway, radar-based Stopped Vehicle Detection (SVD) and Red ‘X’ signals on gantries to close live lanes. As of April 2024, there are 396 miles of smart motorways.
One of the most publicised cases involving smart motorways is that of Jason Mercer and Alexander Murgeanu who died on the M1 near Sheffield in June 2019 when they had stopped on a section of the M1 without a hard shoulder, after a minor collision. At an inquest in 2021, the coroner said the lack of hard shoulder ‘contributed to their deaths and that smart motorways present an ongoing risk of future deaths’.
There are further examples where Coroners have referred National Highways to the Crown Prosecution Service to consider whether corporate manslaughter charges are appropriate. In the case of Nargis Begum, South Yorkshire Police concluded that National Highways could not be held liable for the offence of corporate manslaughter ‘because, in legal terms, the organisation did not owe road users a relevant duty of care under the terms set out in the Corporate Manslaughter and Corporate Homicide Act 2007’.
There have also been cases of technology failure. For example, a ‘computer glitch’ led to a six-car pile-up on the M6 after the safety system shut down in a catastrophic failure. A whistleblower claimed the National Highways’ systems ‘crashed’, disabling radar technology that could pick up the broken-down vehicle in the life-threatening incident which lasted three hours (The Telegraph 17 February 2024).
Statistics show that between June 2022 and February 2024 there were 392 incidents when the technology lost power (Freedom of information request to the Highways Agency).
What do National Highways say? Their view is that ‘smart motorways are our safest roads’.
Undoubtedly, if the ongoing dangers continue and more accidents result from smart motorways there will be further accidents and inquests which could potentially lead to civil claims.
In April 2023, the government announced that they would not build anymore smart motorways following concerns around cost and safety. The existing smart motorways will remain. We are told that £900 million is being spent on existing smart motorways to improve safety. However, over the last 6 months there have been 174 power outages – almost one a day (Panorama April 2024). For motor insurers, the cost of such failings is considerable.
The Highway Code introduced improvements in September 2021 including clearer advice on where to stop in an emergency and the importance of not driving in a lane closed by a red X but does this go far enough? It is unlikely to prevent accidents occurring on a smart motorway particularly where there is a technical glitch.
Where does this leave Insurers? Liability investigation and skilled legal advice becomes key.
When faced with these cases, it’s particularly important for insurers to consider all the facts surrounding the incident. For example, if there was a breakdown of the vehicle where did it happen and what were the specific circumstances leading up to it? Was there any reported technology failure? Was there any CCTV footage and witnesses? What specifically caused the accident?
Finally, there is, surprisingly, very little reported case law currently involving smart motorways and specifically any potential liability which may lie with the National Highways from a civil perspective.
Insurers should join my legal action then! I’ve tried contacting the various insurers bodies and bureaus (specifically and repeatedly MIB) but instead they appear at inquests with National Highways when NH are defending themselves against tech failures.
NH get the best of both worlds, they get to risk your life and then not pay anything if your hurt or ki. Any pay-out comes from the insurers of someone involved. it costs NH nothing.
…and then because smart motorways are dangerous and cause more collisions our premiums go up.
The insurances industry should be on our side, not assisting those causing the increased risks.
Claire Mercer Smart Motorways Kll
thanks for your comments, there are earlier articles and opinion pieces on IE mag which call for an end to public sector immunity from prosecutions. These actions are taken every week by the HSE for safety breaches. The level playing field principle should apply. Where there is evidence of poor safety, dangerous designs, repeated failures of communications or regulatory breaches, action must be taken – Ed.