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Articles and Publications

May 2018

Autonomous Vehicles and the Future of Litigation

Anthony Gatensby
Karen Bernofsky,
Associate

Peter W. Vlaar
Peter W. Vlaar,
Associate Lawyer

By Karen Bernofsky and Peter W. Vlaar

Autonomous vehicles use artificial intelligence and sense their environment using sensors and GPS coordinates to drive themselves without human input.1 However, this is a very broad term that encompasses everything from cars assisting with keeping themselves in their lane to cars that require no human input.

The most widely used system of classification to differentiate various types of autonomous cars was created by the Society of Automotive Engineers (SAE). They have identified 6 levels in total, from 0-5, which increase in automation from 0, which is a standard vehicle, to 5 which allows for no human intervention. However, there remains variation within each level.

Levels of Automation

  • 0 – no automation;
  • 1 – driver assistance;
  • 2 – partial automation;
  • 3 – conditional automation, automation only in some circumstance;
  • 4 – high automation, still allows for human intervention or automation is limited;
  • 5 – full automation, no human intervention2

Only levels one and two are allowed on Ontario roads. Tesla's autopilot system that is currently available in Canada is considered level 2 automation. It is capable of staying within the lanes, braking, accelerating and steering with the road, however, it requires a human driver to be attentive at all times and take over when appropriate.

Fully autonomous vehicles are not currently permitted to operate by law on Ontario's roads, (apart from pilot program testing), however, experts predict that we are only three or four years away from Level 5 production cars being widely available.3 The use of these cars on public roads will be limited by Ontario's regulations, as regulations throughout the world, including Ontario, have consistently been outpaced by the technology.

One of the hurdles to the development of regulations for fully autonomous cars, or primarily autonomous cars, is the question of liability in the event of an accident involving an autonomous car.

The pressing question right now is where the risk lies in semi-autonomous vehicles...

With the possible exception of negligence by the owner or passenger of the vehicle, such as failing to properly maintain the vehicle or using it despite a noticeable malfunction, it is likely that liability will shift for the most part from the human driver to the autonomous system in fully autonomous level 5 cars as the human plays no role in driving these vehicles. However, the pressing question right now is where the risk lies in semi-autonomous vehicles, where the human driver either drives in specific circumstances or acts as a back-up/failsafe.

Currently, a driver can be held liable for damages for the negligent or reckless use or operation of a vehicle.4It seems likely that the same principle would apply to semi-autonomous vehicles but not fully autonomous level 5 vehicles. Levels 0 to 4 all require, or at least allow for, some element of human input and accordingly create a potential basis for negligence against the driver either for their actions or for their failure to act when they can see that the technology is failing.

A notable example of the potential for human liability in semi-autonomous vehicles was the first pedestrian fatality caused by an autonomous vehicle which occurred when an Uber driver struck a woman with a bike in March 2018. The video cameras in the vehicle show that the driver was not concentrating on the road, consistently looking down for long periods, and may not have had her hands on the steering wheel. When the sensors failed to identify the pedestrian and take evasive action, the driver also failed to react and take action. Neither the car nor driver attempted to hit the brakes or change lanes.5 Likewise, in levels 3 and 4 for example, a human driver could be liable for negligently engaging the autonomous technology when it was not appropriate to do so such as in poor weather conditions or where the technology has been malfunctioning. For example, shortly after the incident with Uber, an Apple engineer was killed when his Tesla struck a concrete highway divider. It has been reported that the engineer reported his vehicle had an issue with the divider at this location. Despite this, he both engaged the autonomous driving and took no additional steps to keep control of the vehicle before it struck the barrier despite the vehicle warning him of the impending accident.6

In addition, in Ontario, an owner can be held liable for failure to maintain the vehicle. It is likely that, to a large extent, the current law will apply for all levels of automation, including level 5 as it will remain the owner's responsibility to ensure their vehicle is in proper working order, regardless of whether they are driving it. In this case, it would likely include not only ensuring that the hardware is maintained in good working order but also likely the software, including regular updates, where they would affect the ability of the vehicle to operate safely. Owners can also be held vicariously liable for the negligence of the driver and or for permitting someone to drive their vehicle who they knew was incompetent.6 We anticipate owners' vicarious liability to be limited to levels 0 through to 4 given that it is only by reason of negligence in the operation of the vehicle that the statute is triggered, but that is something that will ultimately need to be clarified by legislation.

Volvo announced that it will accept all liability for accidents involving one of its cars while in fully autonomous mode.

While according to current legal principles there may still remain some liability on owners of level 5 vehicles, this could be affected by legislation or by the agreement of manufacturers. Indeed, some leading manufacturers of autonomous cars have already accepted for liability for any collisions by their fully autonomous vehicles. For instance, in October 2015, Volvo announced that it will accept all liability for accidents involving one of its cars while in fully autonomous mode.7 Google and Mercedes quickly followed suit with the same admission, all in an effort to settle the issue of liability and hasten the development of regulations. In this case, these manufacturers will be held strictly liable by simple virtue of being involved in an accident regardless of who caused it and regardless of the negligence of the owner or passenger in that vehicle. While this is a blanket statement, they could argue it does not apply in cases where the owners alter the hardware or software or fail to maintain the vehicle, much in the way this might void a warranty. However, the admission of liability has significant benefits for insurers of the conventional cars that are involved in such accidents given that they will face much less exposure to tort claims even when the non-autonomous vehicle caused the accident or contributed to it. This admission by these manufacturers likely will make liability for MVA litigation involving these vehicles much more straightforward.

However, there still remains a risk of driver liability with semi-autonomous vehicles and arguably the risk may be increased beyond a standard level 0 vehicle. Scientific studies have shown that human drivers make a poor backup for technology. Where technology is introduced to a vehicle to take over part of the driver's function, the driver cedes control and ignores that function rather than continuing to carry out that task. For example, where a car is driving itself and steering itself, drivers will generally not keep their hands on the steering wheel and watch the road. It is very difficult for a human to suddenly take control of the vehicle in an emergency. Some manufacturers have taken steps to prevent this, such as giving warnings when hands are not kept on the steering wheel and, in some cases, bringing the vehicle to a stop if the hands are not placed on the steering wheel after a certain amount of time.

This conflict between human attentiveness and developing safety features has even attracted tension between some of the major manufacturers. For instance, Elon Musk was criticized by Google, Ford and Volvo for pushing the development of Level 3 autonomy, citing concerns about the transfer of controls between the autonomous system and the human driver.8 The concern is that the amount of time and attentiveness required by human drivers to take over in both critical and non-critical situations creates potentially significant risks.

In addition to the driver, owner, and manufacturer of the vehicle, various third parties provide software and components installed in autonomous cars. The failure of a component within the car, such as a sensor or camera, will likely be caught up in the current regime of product liability law that will apportion an appropriate percentage of liability to the car manufacturer.

As well, autonomous cars may rely on information from third parties outside of the car. For instance, apart from communicating with satellites for global positioning, as autonomous cars and smart infrastructure become more common, autonomous cars will increasingly rely on “V2V” and “V2I”. V2V stands for “vehicle to vehicle” communication. It is a network of communication between automobiles wherein they send messages to each other with information about what they are doing. V2I stands for “vehicle to infrastructure” communication. It is a network of communication between vehicles and infrastructure, such as traffic lights and signs, whereby they communicate with each other in real time.9

...a woman drove an SUV onto a, not adequately frozen, lake based on the GPS' instructions.

Therefore, there could be liability on third parties that design and maintain V2I technology, companies that provide cars with live global positioning data, weather data, or professionals that maintain and service the software of autonomous cars. Certainly, there have been stories of drivers being misdirected by GPS over the years, including as recently as January 2018, when a woman drove an SUV onto a, not adequately frozen, lake based on the GPS' instructions.10 The success of such claims will largely depend on how the courts decide to deal with the issue of defective information, specifically defective information that is provided to autonomous cars that is discovered to be the cause or contributor of a loss. Is information considered a product that can fall under product liability law or will an entirely new category need to be created? While we cannot answer that question quite yet, we can say that, absent legislation, courts will be left to apportion liability among the various actors who have caused or contributed to the loss or damage just as they do under the current tort regime. Overall for litigation, this will mean more parties involved in actions and more sophisticated methods of obtaining evidence and determining liability will be required.

Finally, it is no secret that the future of the automotive industry and the insurance industry will largely be driven by data. The interconnectivity of cars and infrastructure will rely on an expanding collection of information that will become increasingly useful and valuable. That, of course, raises the major issue of cybersecurity. This interconnectivity and proliferation of data will make our personal data vulnerable to hacking and will also make vehicles themselves vulnerable.

The synchronization of phones to car systems means hackers could access a driver's banking information or personal correspondence by gaining access to the car's network. Hackers have also proven an ability to physically lock and unlock cars remotely, cut the power to engines, disable brakes or engage the throttle.11 It would appear that with each technological innovation and advancement comes a new cybersecurity risk. As far as the vulnerabilities of the cars themselves, we expect liability to fall on the manufacturer, whereas for vulnerabilities related to third-party sources (such as V2I infrastructure) we anticipate liability will fall on the municipality and/or maintenance provider.

Therefore, while the transition phase towards level 5 automation threatens to be complex and costly, we are confident that Ontario's tort system is capable of responding to it. Level 5 autonomy will remain elusive for the time being, subject to the development of regulation and legislation, but it remains poised to offer a simpler system overall for dealing with liability in auto claims.


1 A Pilot Project to Safely Test Autonomous Vehicles – Summary of Proposal
2 SAE International, “Automated Driving, SAE International Standard J3016”
3 Olivier Garett, 10 Million Self-Driving Cars Will Hit The Road by 2020-Here's How to Profit Business Insider (March 3, 2017)
4 Highway Traffic Act, R.S.O. 1990, c. H.8, s. 192(1) and 19(2).

5 Autonomous Car Crashes: Who – or What – Is to Blame?
6 Ibid.
7 Kirsten Korosec, Volvo CEO: We will accept all liability when our cars are in autonomous mode Fortune (October 7, 2015)
8 Fred Lambert, Elon Musk defends level 3 autonomy against Google & Volvo Electrek (September 13, 2016).
9 Margaret Rouse, Vehicle to Vehicle Communication Internet of Things Agenda, (October 2014).
10 Driver following GPS plunges vehicle into Lake Champlain
11 Viereckl, Ahlemann, Koster and Jursch, Connected Car Study 2015: "Racing Ahead With Autonomous Cars and Digital Innovation", p.30.


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