If a “driverless” vehicle with a person at the wheel injures or kills someone, who – or what – is at fault?This is no longer science fiction or a mind experiment. Forecasts project 4.5 million self-driving cars on USA roads by 2035, which could translate to 500 thousand such vehicles in Canada. The Victoria Transportation Policy Institute in BC predicts autonomous vehicles (AV’s) will make up half of Canada’s new vehicle sales in 20 years or so. In 2019 there were AV pilot programs being conducted in nine cities in British Columbia, Alberta, Ontario, and Quebec. A Toronto-area pilot program was suspended in December 2021 when a transit prototype AV hit a tree, critically injuring the driver; it was later determined that the vehicle was in manual control at the time.There are five levels of AV automation, ranging from cruise control and lane guidance (already available on many cars) up to full self-driving under all conditions, without a driver. So, it’s not a simple black-or-white proposition; the question of “How autonomous?” comes into play.Motor vehicle accident (MVA) cases of injury and death involving AV’s in the USA and the UK have arrived at opposite conclusions regarding liability. How this plays out in Canada remains to be seen.

USA

In Arizona in 2018 a self-driving Uber struck and killed a woman who was wheeling her bicycle across the road. The vehicle’s visual technology could not determine whether she was a pedestrian, a bicycle, or a vehicle, and predicted her path incorrectly. The backup driver did not react in time to stop the car and was charged with negligent homicide. The National Transportation Safety Board investigation identified several reasons the hand-off of control from vehicle to driver did not work, but Uber was not held responsible.

UK

In August 2022, the UK government announced a £100m plan to speed development and deployment of AV’s. The plan calls for new safety regulations, including holding auto makers accountable, meaning that when a vehicle is self-driving the person behind the wheel will not be held responsible for any driving errors.

Canada

The Insurance Bureau of Canada (IBC) has observed that auto insurance policies under provincial legislation presume that human error is the primary cause of motor vehicle collisions – which historically in North America has been true 90% of the time. At present, if a driver is using autopilot or self-parking mode and has an accident, the fault still lies with the driver, not the technology. But as technology takes over more driving, accidents will be caused increasingly by product malfunctions. Transferring responsibility from humans to technology means many injured plaintiffs would have to proceed through product liability litigation to get compensation, which is more complex and takes years longer to resolve than traditional motor vehicle liability claims. This will delay compensation for many people who are injured in accidents involving AV’s.IBC’s recommended insurance framework to accommodate AV’s and their drivers includes:

  1. A single insurance policy covering both driver negligence and automated technology. The AV’s insurer would compensate injured people if the vehicle caused an accident, whether the human operator or automated technology was in control.
  2. A data-sharing arrangement with vehicle manufacturers, vehicle owners and/or insurers to help determine the cause of a collision, whether the vehicle was in manual or automated mode at the time of the MVA, and the vehicle operator’s interaction with the automated technology.
  3. New federal vehicle safety standards for AV technology and cyber security.

How will this affect Personal Injury lawyers? Will you need to become product liability experts too? Clearly you will need a knowledge of AV technology and will need to stay abreast of developments in its use.