In 2016, automobile manufacturers predicted that autonomous vehicles (“AVs”) would hit the road for wide consumer use as early as 2021. It is now 2022 and human operated vehicles still rule the road. Although the reasons for delay are not particularly clear, it is apparent that AVs still have a long road ahead of them (pun intended). A recent study from the American Automobile Association found that AVs attempting to negotiate an intersection with a cyclist struck the cyclist 33% of the time. (https://newsroom.aaa.com/wp-content/uploads/2022/05/E-1_Research-Report_2021-ADA-Evaluation_FINAL_4-13-22.pdf)

Despite their slow start, the emergence of AVs on major highways and city roads is likely inevitable. The advent of AVs means that human drivers will play an increasingly smaller role in the operation of the vehicle. It is unlikely that AVs will be fully autonomous from their inception; rather, the initial phases of AVs will be semi-autonomous, allowing drivers to surrender control of their vehicle to artificial intelligence or automated driving systems (“ADS”) while their vehicle is in operation.

In theory, AVs will and should reduce the number of accidents we have on our roads. However, it is unlikely that accidents will be a thing of the past – this will especially be the case so long as humans retain some control over the operation of AVs. Even if human error is completely erased from the equation, it is possible that future accidents will arise from faulty artificial intelligence, software or product design. As liability for future accidents shift from drivers to manufacturers, the law will need to shift with them as well. However, there has been little discussion on how we legislate and govern these vehicles once they are road ready. One area of concern that needs addressing will be the determination and apportionment of civil liability for bodily injuries arising from motor vehicle accidents involving AVs. Luckily for us, our friends from across the pond have taken up the mantel in this regard.

Automated and Electric Vehicles Act 2018

In the United Kingdom, the Automated and Electric Vehicles Act 2018 (the “AEVA”) received Royal Assent on July 19, 2018. (https://www.legislation.gov.uk/ukpga/2018/18/contents/enacted) The AEVA takes a radically different approach from the current traditional insurance scheme in that it prescribes direct liability on insurers for accidents caused by AVs, while the vehicle is not under the immediate control of a human driver. In other words, the insurer is liable for any and all damages caused by the AV whether those damages are suffered by the insured person or a third party.

In January 2022, the UK Law Commission completed a joint report on the regulatory framework of AVs in the United Kingdom.(https://www.lawcom.gov.uk/project/automated-vehicles/) This report provided a sneak preview of the potential issues regarding civil liability, among others issues, that are likely to crop up when AVs become more ubiquitous in Canada.

Issue #1: Exclusion from Coverage

Section 3(2) of the AEVA excludes coverage during instances when the accident is “wholly due to the person’s negligence in allowing the vehicle to begin driving itself when it was not appropriate to do so.” This section imparts liability on a driver if they negligently engage ADS while operating the AV.

Some British stakeholders were concerned that Section 3(2) places a heavy burden on individual drivers to discern the appropriateness of engaging ADS while operating the AV. For instance, the terms of use of could state that ADS should not be engaged during heavy rain or snowfall, leaving many drivers to employ their own meteorological skills to discern the appropriateness of the weather before engaging ADS.

The UK Law Commission suggested that a possible solution to this dilemma would be to ensure that AVs could only operate within ideal conditions. But, limiting the ADS to only the most ideal conditions will likely dissuade consumers in countries, such as Canada, from embracing the technology all together. Therefore, an exclusion of this kind may not be feasible if the initial phases of the technology are to be rolled out in Canada.

Issue #2: Secondary Claims

The AEVA allows insurers that are directly liable to an injured party to commence a secondary claim against any other party who may be at fault whether they be a driver of another conventional vehicle and/or a manufacturer.

Section 5 of the AEVA states that a secondary claim against another at fault party can only be commenced once the injured party’s claim is settled either by judgment, arbitral award or enforceable settlement.

It appears that the intention of section 5 is to incentivize a timely resolution of primary claims given that secondary claims against at-fault drivers or car manufacturers could be tied up in the courts for years.

Issue #3: Causation and Contributory Negligence

Section 2 of the AEVA indicates that coverage will apply where the accident is “caused” by the AV while ADS is engaged. It is not entirely clear from the AEVA whether coverage applies if the AV merely causes the accident or whether there must be an element of fault on the part of the AV before coverage is applicable.

The UK Law Commission took a rather non-committal position with regards to causation, citing that it should be left to the courts to decide whether causation requires fault for the AEVA to apply.

Presumably, the UK courts will follow the common law which holds that fault is a necessary element of one’s liability for damages. Detracting from the current jurisprudence would significantly increase the likelihood of claims and may cause insurance coverage to be too costly for insurers to underwrite and too expensive for consumers to purchase.

Also, section 3(1) of the AEVA states that contributory negligence will remain in actions involving AVs. As such, liability on the part of AVs will be reduced to the extent of the negligence of the injured party.

Section 3(1) goes on to state that contributory negligence will “apply to a claim in respect of the accident brought by the injured party against a person other than the insurer or owner.” This section is quite vague and requires some legal gymnastics to understand as it creates two counter-factual situations:

  1. The court must treat the claim as if it had been brought against a person other than the insurer or vehicle owner under the law of tort, and
  2. That the insurer is at fault because of the behaviour of the AV.

Alex Glassbrook of the UK Firm, Temple Garden Chambers LLP, suggested that a possible interpretation of section 3(1) is that it “provides for a notional human comparator in place of the car, to avoid difficult comparisons between human and machine reasoning when assessing comparative fault.” (https://aevlaw.com/blog/overview-of-the-automated-and-electric-vehicles-act-2018/)

Even though some British stakeholders have voiced their concerns over the ambiguity of section 3(1), the UK Law Commission indicated that AEVA was “good enough for now”, citing that the Courts are well equipped to consider any issues that may arise.

Conclusion

It seems completely logical for Canadian common law jurisdictions to adopt a legislative scheme that closely resembles the AEVA given the similarities of our respective legal systems. Of course, the Canadian scheme will likely be modified to account for regional differences (e.g. climate) between the nations. But the UK experience will be a valuable “guinea pig” to study as we prepare our own legislative framework for the brave new world of AVs.

*Originally published in The Lawyer’s Daily

Ryland MacDonald
Ryland MacDonald

Ryland is an experienced litigator in defending insurance claims arising from tort actions and accident benefits disputes, including complicated catastrophic impairment claims, WSIAT disputes, loss transfer and priority disputes.

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