While at the Bramalea City Centre Mall with her mom and siblings, the plaintiff (a minor) fell backwards on an upward moving escalator. Unfortunately, her left hand got stuck in the step-to-skirt gap of the escalator resulting in a severing of her left index finger.
The plaintiff and her mother commenced a lawsuit against the owners of the mall, the Schindler Elevator Corporation and the Technical Standards and Safety Authority (the “TSSA”). Schindler was hired to inspect and maintain the escalators at the mall. In their regulatory capacity, the TSSA also periodically inspected the escalators. The escalators were subject to the inspection and maintenance requirements adopted by the TSSA.
The TSSA brought a partial motion for summary judgment which was ultimately dismissed.
The plaintiffs produced an expert report which concluded that the subject step/skirt gap exceeded the upper standard and that the step/skirt performance index (“SPPI”) also exceeded the standard. The report opined that Schindler failed to take corrective measures to reduce the SPPI when it was discovered just a few months prior to the plaintiff’s injury. The report also opined that if the TSSA carried out inspections at the one-year frequency recommended by industry standards, they more likely than not would have discovered the SPPI issue, which in turn should have resulted in an issuance of a compliance order and a shutdown of the escalator.
While the TSSA were able to produce detailed logs of their inspections and reports/orders, it likely did not assist that TSSA provided conflicting evidence on how often the escalator was periodically inspected. Furthermore, TSSA’s own evidence supported that the escalator had recurring issues with the anti-friction skirt, which the plaintiff’s expert opined increased the risk for step/skirt entrapment.
The Court held that a trier of fact would benefit from hearing evidence of all witnesses in order to determine the issues and assess the strength of the evidence, as well as provide a fair and just determination on the merits. The Court determined that TSSA’s actions / responsibilities were not clearly severable from the balance of the case against the remaining defendants, which would remain even if the motion was granted.
This decision highlights that actions with multiple defendants who may be jointly and severally liable under the Occupiers' Liability Act are unlikely to be successful candidates for a partial summary judgment motion.
See Gallo v. Bramalea City Centre Equities Inc., 2019 ONSC 1443
Shalini defends insurance claims covering all aspects of general insurance liability including motor vehicle accidents, occupiers’ liability, slip and falls, as well as accident benefits litigation and arbitration and priority and loss transfer disputes.
This decision arises from a motor vehicle accident that occurred on February 8, 2011. The trial took place in January 2019 before Trimble J. After the jury retired to deliberate, the defendants brought a motion for a declaration that the plaintiff’s injuries did not meet the threshold under section 267.5(5) of The Insurance Act. This decision provides a useful summary of the applicable case law and the facts that will likely affect the outcome of a threshold motion.
As Trimble J. stated “Mr. Mann’s case is a little more complex than others.” The plaintiff was involved in a motor vehicle accident on October 15, 2008 in which he injured his neck, shoulders and low back, among other things. His evidence at the trial related to his 2011 accident was that while those injuries were still symptomatic at the time of the 2011 accident, he had generally improved by 50% at that time.
The Effect of the Jury’s Verdict on the “Threshold” Motion
The defendants argued their threshold motion on January 30, 2019 while the jury was deliberating. The jury returned its verdict on February 1, 2019, awarding the plaintiff $15,000 for general (non-pecuniary) damages, $0 each for past and future income loss, past and future health care costs, and for past and future housekeeping expenses.
The question became whether, and to what extent, the trial judge may consider the jury’s verdict on a threshold motion?
While some some judges have held that threshold motions should be decided before the return of the verdict, so that there is no perception that the judge was influenced by the findings of the jury (Chrappa v Ohm,  O.J. No. 1663 (S.C.J.), others have held that the trial judge may consider the verdict on the threshold but is not bound by it (Bishop-Gittens v Lim, 2016 ONSC 2887 (S.C.J.).
Trimble J. determined that the jury’s verdict does not determine threshold and it is not binding (Jugmohan v Royale, 2015 ONSC 1497 (S.C.J.) (CanLll) especially where the finding depends on credibility (Kasap v MacCallum, 2001 Can Lll 7964 (ONCA). His Honour went on to state: “The trial judge may not abandon to the jury his or her statutorily imposed duty to make findings of fact necessary to decide the threshold.”
The Role of Credibility (Where there are no Objective Signs of Injury)
As in any personal injury action, proof of the plaintiff’s claimed injuries and impairments come from the plaintiff’s own subjective evidence. In this case, Trimble J. found that the plaintiff’s credibility was a key issue and “the success of the threshold motion (if not the entire action) may hang upon it.”
In his reasons, Trimble J. stated that plaintiffs generally lose threshold motions where the plaintiff is an unreliable historian, gives contradictory evidence, is not candid with his doctors, gives inaccurate or incomplete information to doctors, does not follow doctors’ recommendations, where surveillance clearly contradicts the plaintiff’s report of pain, injury and disability, and/or the plaintiff’s performance as a witness shows him to be argumentative and uncooperative (Rajic v Atking, 2011 ONSC 1024 (Can Lll) and Smith v Declute, 2012 ONSC 3308 (CanLll).
Trimble J. allowed the defendants’ motion and held that the plaintiff had not met his burden to establish, on a balance of probabilities, that he suffered a permanent, serious impairment of an important bodily function. Accordingly, he was barred from recovering damages for health care costs and non-pecuniary general damages.
With the exception of Dr. Berbrayer, all doctors accepted that the plaintiff had no objective signs of injury on examination. Because no other doctor supported Dr. Berbrayer’s view and all doctors diagnosed the plaintiff based on his subjective complaints, his credibility was critical to the threshold motion. Interestingly, but for one instance, Trimble J. found the plaintiff to be honest and trustworthy. The one exception related to the plaintiff’s post 2011 income. The plaintiff claimed that, following the accident, to survive financially he had borrowed from credit cards and lines of credit, took out loans, and relied on money his children were giving him. According to Trimble J. “the picture was of a man scrambling, financially, to maintain his household.”
This “picture” was not accurate as, on cross-examination, the plaintiff admitted that in March 2013 he had settled his accident benefits claims (for both his 2008 and 2011 accidents) for $125,000, in 2018 he had sold some rental property netting over $400,000 from that sale, and the home he and his wife were living in had a value of about $800,000 with a remaining mortgage of only $112,000. The plaintiff had been making his mortgage payments from 2008 to 2019 on both the rental property and his home. The fact that he received $125,000 in March 2013 and $400,000 only six months before the start of the trial was important to Trimble J. who found that “this could hardly have slipped his mind.”
The plaintiff was also found to be an unreliable historian. What he told one doctor about his state of health and function was often at odds with what he told another doctor. The contractions were described as “significant.” For example, he reported numerous pain complaints including headaches, severe neck pain, shoulder pain, arm pain, hand pain, leg pain, arm numbness, leg numbness, mid-back pain, and fatigue. Yet, he gave a much reduced injury list to other doctors and his reports to various doctors were not consistent. He told one doctor he lost consciousness in his accident, yet makes no mention of this to other doctors. He reported a shift in pain from his right to his left arm, to one doctor, but to no one else. He told some doctors that he no longer did any activities around the house which contradicted his evidence at trial.
Further, following his 2011 accident, the plaintiff applied for CPP disability benefits. In his application, he provided statements in support of his claim where he reported that he stopped working following his prior accident, in 2008, and made no mention of the 2011 accident that was the subject matter of the trial. He also reported limited function and abilities which related to the 2008 accident, and not the 2011 accident, contrary to his evidence at trial and to most of his doctors.
The defendants had commissioned surveillance video footage showing the plaintiff walking for 49 minutes with no signs of difficulty or the need to stop to rest. A second video showed the plaintiff grocery shopping, alone, lifting 3 L bags of milk from the refrigerator into his buggy, pushing the buggy out to his car, unloading the bags into the trunk and back seat of his car, and carrying some of the bags into his home. Later the plaintiff was seen entering his garage, retrieving a gasoline powered lawn mower, using the pull cord to start it, and mowing his front lawn for about 20 minutes. He pushed, pulled and turned the lawnmower without any difficulty. A few moments later he was seen dragging the hose around the back yard and hosing down lawn furniture. At no time did he show any signs of discomfort.
Trimble J. held that the plaintiff’s unreliability as a historian undermined the opinions of the doctors who testified on his behalf (Drs. Berbrayer and Getahun). Further, both doctors conceded that they accepted the history and complaints the plaintiff gave them and that much of their opinion depended on the plaintiff’s credibility. And, importantly, the plaintiff’s doctors were not given copies of the surveillance.
The plaintiff’s position is that his chronic pain since his 2011 accident has created a serious permanent impairment of an important bodily function.
Trimble J. stated that, due to the plaintiff being an unreliable historian, he would not have found that the 2011 accident caused any injuries or aggravated any pre-existing conditions, and at a minimum, he suffered an aggravation of his neck, shoulder and lower back symptoms, originally caused by the 2008 accident. His Honour did hold that the plaintiff suffered an impairment of a bodily function as a result in the 2011 accident.
According to Trimble J., the word “permanent” does not mean “forever.” The impairment must last into the indefinite future as opposed to a predicted time period, with a definite end (Brak v Walsh, 2008 ONCA 221 (CanLll). In this case, it was held that the plaintiff failed to meet his onus of establishing that the aggravation of his 2008 injuries in the 2011 accident was permanent. This decision was based on the fact that His Honour did not find the plaintiff’s doctors, Drs. Berbrayer and Getahun reliable and preferred the evidence of the defendant’s doctors, Drs. Czok, Chang and Finkelstein. Their views were accepted: at best, the plaintiff suffered a temporary aggravation of his 2008 accident related neck, shoulder, and back injuries in the 2011 accident and the aggravation would have lasted not more than 8 to 12, or 14 to 20 weeks after the 2011 accident.
To determine the importance of the bodily function in issue one must ask “Is it one that plays a major role in the health, general well-being, and way of life of the plaintiff?” This is a subjective analysis and what must be considered is whether the injured person, as a whole, and the effect which the bodily function involved has upon the person/s way of life (Vandenberg v Montgomery,  O.J. No. 2789 (S.C.J.) and Ahmed v Callenger,  O.J. No. 4188 (S.C.J.).
Trimble J. did find that the functions that were impaired (the plaintiff’s ability to do work around the house or to go to the Temple often) were important to his life and wellbeing as it existed at the time of the 2011 accident and, therefore, were important.
To determine whether the impairment is “serious” the court is required to consider the seriousness of the impairment to the person, as opposed to the injury in isolation (Mayer v 14744879 Ont. Inc., 2013 ONSC 6806 (CanLll) and Mohammed v Lafleur-Michelacci,  O.J. No. 2476 (S.C.J.). Further, the impairments must go beyond the tolerable. Interference may be frustrating and even unpleasant, but if it does not go beyond tolerable it is not serious (Frankfurter v Gibbins, (2004) CanLll 45880 (ON SCDC) and Branco v Allianz Ins. Co. of Can.,  O.J. No. 3056 (S.C.J.).
In this case, the court did not find that the plaintiff had met the burden or proving, on a balance of probabilities, that his impairment was serious as defined in the legislation and case law, as compared to his condition immediately before the 2011 accident. The notes of the plaintiff’s family doctor showed little change in his condition before and after this accident.
The Take Away
This decision is a reminder when a plaintiff has not suffered any objective injuries, his or her credibility is key. Surveillance, in such situations, should definitely be arranged and, if helpful, used at trial. The defence should consider bringing a threshold motion in cases where there are inconsistencies between the plaintiff’s discovery evidence, what the plaintiff reports to various doctors, and the plaintiff’s evidence at trial, as this case suggests there will be a relatively strong chance of success in such situations.
The Ontario Court of Appeal concurrently released two eagerly awaited decisions that speak to the interplay between tort damage awards and statutory accident benefits (SABs) under s. 267.8 of the Insurance Act in motor vehicle accident personal injury cases. Cadieux v. Cloutier addressed the deductibility of SABs paid before trial from tort damage awards, while Carroll v. McEwen dealt with the assignment of future SABs to the tort liability insurer.
In a nutshell, the five-judge panel hearing both of these cases held as follows:
The modern “silo” approach based on the three broad SABs categories (specified weekly benefits, health care benefits and other pecuniary benefits) is preferred over the strict “apples to apples” matching approach in relation to both the deduction and assignment of SABs from tort damage awards
SABs deductions are allocated between Defendants on the basis of each Defendant’s respective liability share (found to be a 50/50 split of the deduction in Cadieux)
There is no basis for making a temporal distinction between past and future SABs for the purpose of deductibility of SABs settlements from the tort damage award
Past SABs payments are deductible from the tort damage award even if those payments were made to third parties instead of the Plaintiff directly
SABs settlements are deductible from the tort award before factoring in the Plaintiff’s legal costs of SABs recovery, although those costs may be awarded to the Plaintiff in certain circumstances
The amendments to theInsurance Act concerning pre-judgment interest on general damages are procedural and apply retrospectively (as considered by MacFarland J.A. more thoroughly in the 2017 Court of Appeal Cobb and El-Khodr decisions)
1. Deductibility of Statutory Accident Benefits from Tort Damages
Cadieux v. Cloutier revolves around a 2006 motor vehicle accident involving a pedestrian (Cadieux) who got into an altercation with another pedestrian (Saywell). Saywell pushed the Plaintiff toward the road, causing him to stumble into the path of a truck being driven by the Defendant, Cloutier, causing a brain injury and multiple orthopaedic injuries. The Plaintiff claimed SABs from his no-fault insurer, Aviva, and also brought a tort action for damages against the Defendants. Before the trial, the Plaintiff settled his SABs claim with Aviva for $900,000 and also settled his tort claim against the Defendant truck driver, Cloutier, vis-à-vis a Pierringer agreement.
After a seven-week jury trial solely against the Defendant, Saywell, the jury awarded damages in excess of $2.3 million. The jury also apportioned liability equally amongst each of the parties involved: 1/3 against the Plaintiff and 1/3 against each of the Defendants, Cloutier and Saywell. Following the jury’s verdict, Saywell brought a motion dealing with several issues, including:
A. Should SABs deductibility be based on a strict “apples to apples” comparison of the items in the jury award against the SABs payments received, or is it sufficient that the tort award generally corresponds with the three SABs “silos”?
This issue arose because the jury did not make any specific award for the costs of future attendant care. Instead, the jury awarded over $700,000 for the future care costs of an ABI support worker, which related to medical/rehabilitation benefits – not attendant care benefits. Using an “apples to apples” approach, the Plaintiff argued that only the SABs settlement for medical/rehabilitation benefits ($250,000) should be deducted as opposed to the portion of SABs payments related to attendant care ($350,000). The Defendant, Saywell, argued that both medical/rehabilitation and attendant care benefits were captured within the silo of “health care” expenses and are properly deductible from the jury’s award for future care costs.
The trial judge favoured Saywell’s argument that SABs deductibility under s. 267.8(4) of the Insurance Act should be interpreted by applying the definition of “health care” under s. 224(1), which includes “all goods and services for which payment is provided by the medical, rehabilitation and attendant care benefits provided for in the SABs” (emphasis added).
The Court of Appeal five-judge panel unanimously upheld the trial judge’s preference for the “silo” approach to SABs deductibility, noting that he did not err in reducing the jury’s damage award by the SABs received by the Plaintiff for both medical/rehabilitation and attendant care benefits. According to the panel, the strict “apples to apples” matching approach complicates tort actions unnecessarily by focusing on irrelevant labels for heads of damages as opposed to simply matching the tort damage award to the corresponding SABs “silos” of (1) specified weekly benefits, (2) health care benefits and (3) other pecuniary benefits.
B. Is a tort Defendant entitled to deduct 100% of a SABs settlement, or is the deduction allocated amongst Defendants based on their respective share of liability?
Although the Insurance Act is silent on the apportionment of SABs deductions between two or more Defendants, the trial judge relied on the principles of equity and common sense to find that SABs deductions are allocated based on the liability proportion of each Defendant. If the non-settling tort Defendant were to enjoy a 100% reduction from his 1/3 share of damages, he would be unjustly enriched, which would deter pre-trial settlements. The Court of Appeal agreed, finding that the SABs deduction ought to be apportioned 50/50 as between the two Defendants.
2. Assignment of Future SABs to the Tort Liability Insurer
Carroll v. McEwen involved a pedestrian motor vehicle accident occurring in 2009. The Defendant driver/owner (the McEwens) carried $1 million in liability insurance with Aviva, so the Plaintiff also sued her own automobile insurer, Pilot, on the basis of the OPCF 44R endorsement under her policy and the underinsured motorist provisions of the Insurance Act.
Following a seven-week jury trial, the McEwens were found 62% liable, with the Plaintiff bearing 38% contributory negligence. The jury awarded damages in excess of $2.6 million net of the Plaintiff’s contributory negligence, including a lump sum award of over $2.2 million for the Plaintiff’s “future care costs”. The trial judge granted Aviva and Pilot a conditional order that if they paid the judgment in full, they would receive an assignment of the future medical/rehabilitation and attendant care SABs that the Plaintiff received from her no-fault insurer. This could potentially reduce Aviva and Pilot’s net liability in the event that the outstanding SABs payments were greater than the excess amount awarded after applying the combined $2 million liability coverage.
The Plaintiff appealed the conditional assignment order for the main reason that it violated the strict “apples to apples” matching principles identified in earlier case law.
For similar reasons outlined in Cadieux, the Court of Appeal ultimately dismissed the Plaintiff’s appeal. The Court disagreed with the approach of strict identification and matching between specific SABs benefits and damages for the identical head of damages awarded by the jury within the same silo. In their view, the “silo” approach adopted in Cadieuxshould equally apply to the assignment of future SABs. As the jury’s damages award for future care costs exclusively falls within the “health care” silo, the Court of Appeal found that the same was true of future SABs. As such, the trial judge did not err by ordering a conditional assignment of the future medical/rehabilitation and attendant care SABs available to the Plaintiff. The Court of Appeal also varied the conditional order by requiring the Plaintiff to disclose the amount of SABs received following the conclusion of the trial of the tort action.
These two important decisions deal with several complex issues in the motor vehicle litigation realm which make them worthy of paying attention to. Overall, the Court of Appeal has no doubt expressed strong support for the more modern “silo” approach as opposed to the strict “apples to apples” matching approach adopted under an earlier and very different legislative regime. At the end of the day, this means that the three broad categories or “silos” of SABs benefits are deductible from the corresponding tort damage award categories. The Court of Appeal has also adopted the same approach and reasoning in relation to the assignment of future SABs granted to tort liability insurers post-trial.
It is notable that the Court of Appeal found that the deductibility of SABs payments from tort awards does not warrant what has been described as the “complicated and cumbersome process” of matching heads of damages in tort to particular SABs benefits. So even if a jury neglects to make a specific tort damage award for “attendant care” expenses, SABs payments for attendant care benefits may still be deductible from the tort damage award for the reason that they are captured within the silo of “health care” as defined in s. 224(1) of the Insurance Act.
Thanks to Cadieux, we also now have another Court of Appeal decision which explicitly recognizes that the Insurance Act amendments regarding the calculation of pre-judgment interest on general damages are procedural in nature and that they apply retrospectively to accidents which took place before the amendments came into effect.
Krista has a diverse insurance law practice which focuses on bodily injury litigation, including general negligence/liability claims, motor vehicle accidents, commercial general liability, homeowners’ liability and occupiers’ liability, as well as priority/loss transfer disputes between insurers. Read more...
This action was brought against the Village of Kaslo (B.C.) by a plaintiff who sustained damages after falling down an embankment off Water Street (an unpaved alleyway). The Village had erected concrete barriers at the mouth of the street/alley in order to bar vehicles from entry and to demarcate the embankment. However, there were gaps between the barriers. Although the plaintiff was familiar with the area, she had her back to the barriers while helping her husband park their motor home. As a result, she stepped between one of the gaps before falling down and injuring herself.
In determining liability, the Court relied on the Supreme Court’s decision of Ryan v. Victoria (City), 1999 CanLII 706 (SCC) in which conduct was defined as negligent where it created “an objectively unreasonable risk of harm”. In this case, the Court noted the following factors: the embankment was patently obvious, the area was rarely used, the plaintiff knew of the embankment and there had been no other incidents of falls down the embankment.
Court dismissed the action and found that the infrastructure placed in the area of the fall by the Village was adequate. It was not necessary to put up fencing or fall protection as it was obvious that the area was hazardous. The Court also found that the plaintiff would not have fallen if she watched where she was stepping. Namely the “proximate cause” of her fall was determined to be her inattention in walking backwards toward the embankment despite being aware of the hazard.
While this decision is not binding on an Ontario Court, the duty of care owed by an occupier is defined almost identically in the Occupiers Liability Act of B.C. and Ontario. As such, the decision would likely be persuasive in Ontario in suggesting that common sense and the principles of reasonableness should prevail in disputes over whether an occupier has discharged its duty of care to ensure that people (and/or their property) will be reasonably safe while on their premises.
Shalini defends insurance claims covering all aspects of general insurance liability including motor vehicle accidents, occupiers’ liability, slip and falls, as well as accident benefits litigation and arbitration and priority and loss transfer disputes.
Risk of personal injury after vehicle stolen by two minors from commercial garage found not to be reasonably foreseeable.
The Supreme Court of Canada has weighed in on the duty of care owed by a business that stores vehicles to someone who is injured following the theft of a vehicle. This case arose after two teenagers drank alcohol, smoked marijuana, stole a vehicle from an unsecured car garage in town and subsequently crashed the vehicle. The passenger in the vehicle suffered a catastrophic brain injury and commenced a lawsuit against the driver, the driver’s mother (who supplied some of the alcohol) and the commercial car garage.
The issues the Court weighed in on were as follows:
Was the risk of personal injury reasonably foreseeable in this case?
Did the garage have a positive duty to guard against the risk of theft by minors?
Could illegal conduct sever any proximity or negate a prima facieduty of care?
Was the Risk Reasonably Foreseeable?
The Court commented that the foreseeability question must be framed in a way that links the impugned act (leaving the vehicle unsecured) to the harm suffered by the plaintiff (physical injury). It was not enough simply to determine whether the theft of the vehicle was reasonably foreseeable. The proper question to be asked was whether the personal injury suffered was reasonably foreseeable to someone in the position of the defendant when considering the security of the vehicles stored at the garage.
The Court noted that the evidence did not suggest that a vehicle, if stolen, would be operated in an unsafe manner, failed to address the risk of theft by a minor, and failed to address the risk of theft leading to an accident causing injury. To find a duty, there must be some circumstance or evidence to suggest that a person in the position of the defendant ought to have reasonably foreseen the risk of injury — that the stolen vehicle could be operated unsafely.
While in this case, it was argued that it was the risk of theft by minors that could make the risk of the unsafe operation of the stolen vehicle foreseeable, had there been other evidence or circumstances making the risk of personal injury reasonably foreseeable, a duty of care would exist.
Duty to Guard Against Risk of Theft by Minors
Although there was no need to address this given the conclusion that the injury was not reasonably foreseeable, the Court provided commentary on this issue. It was argued that the commercial garage was analogous to a commercial vendor of alcohol who has a duty to those who may be harmed by the damage caused by an intoxicated patron. The Court remarked that this analogy was misguided. While a garage benefits financially from servicing cars, they do not profit from or encourage the persons who steal cars. Having many vehicles does not necessarily create a risk of personal injury.
Additionally, the mere fact that the plaintiff was a minor was insufficient to establish a positive duty to act. Tort law does not make everyone responsible for the safety of children at all times.
Could Illegal Conduct Sever / Negate Duty of Care?
Although there was no need to address this given the conclusion that the injury was not reasonably foreseeable, the Court provided commentary on this issue. The notion that illegal or immoral conduct by the plaintiff precludes the existence of a duty of care has consistently been rejected by the Court. Whether the personal injury caused by unsafe driving of the stolen car is suffered by the thief or a third party makes no analytical difference to the duty of care analysis.
The Court concluded that, while the risk of theft was reasonably foreseeable, the evidence did not establish that it was foreseeable that someone could be injured by the stolen vehicle. There was no evidence to support the inference that the stolen vehicle might be operated in an unsafe manner causing injury. It concluded that a business will only owe a duty to someone who is injured following the theft of a vehicle when, in addition to theft, the unsafe operation of the stolen vehicle was reasonably foreseeable.
The Court made it clear that its decision was based on the evidentiary record in this case. This is not to say that a duty of care will never exist when a car is stolen from a commercial establishment and involved in an accident. Another set of facts and evidence may establish that the business ought to have foreseen the risk of personal injury. In this case, the plaintiff only established a risk of theft in general. However, there was nothing to connect the risk of theft of the car to the risk of someone being physically injured.
case has liability implications for both personal and commercial auto insurers. The Court did not accept that anyone that leaves a vehicle unlocked with the keys in it should always reasonably anticipate that someone could be injured if the vehicle were stolen, noting this would extend tort liability too far. Physical injury is only foreseeable when there is something in the facts to suggest that there is not only a risk of theft, but that the stolen vehicle might be operated in a dangerous manner. A commercial entity will not be held liable simply because it failed to properly secure vehicles on its premises. The Court has made it clear that plaintiffs must now jump an additional hurdle in order to establish a duty of care against an owner / entity with possession of a vehicle after the vehicle is stolen and personal injury ensues.
On March 18, 2018, a vehicle operating in a “self-driving mode” (owned by Uber) struck and killed a woman in Tempe, Arizona, as she was crossing the street. This was the first documented time that an individual was killed by a self-driving vehicle. The vehicle in question was manufactured by Volvo but was owned and retrofitted by Uber with a self-driving mechanism. The vehicle did not “see” the woman crossing the street, did not slow down, and struck her.
Recognizing that we need more information, this incident begs the question: whose fault is it?
1. Volvo (manufacturer)?
Perhaps you would argue that Volvo should hold some liability for this accident. The question that needs to be answered is whether Volvo could have foreseen that Uber was intending to retrofit its vehicle with a self-driving device and whether Volvo had any control over the implementation / design / programming of the device. This would require an investigation into the ongoing relationship between Volvo and Uber.
This argument may prove to be quite dangerous. It would be shocking to hold a car manufacturer responsible for a regular car accident where a driver was negligent (absent a faulty product). However, is there a heightened standard of care that an auto manufacturer should have when they are engaging in research or development of a new product? Holding an auto manufacturer liable for the actions of a third party may be outrageous, but shouldn’t we expect a manufacturer to ensure that their product is being used for its intended purpose and if not, to step in?
2. Uber (owner / modifier)?
In this case, Uber seems like the obvious target. Or is it? Uber purchased a vehicle that was designed to be driven by a driver (with some assistive electronics like lane assist and adaptive cruise control). Uber took an active step to alter the vehicle and fit it with autonomous driving capabilities. Uber created a product and is liable for its malfunction.
But then the question arises: what level of autonomy did Uber program the vehicle to have? The US Department of Transportations National Highway Traffic Safety Administration (NHTSA) created a five-tiered ranking system to determine a vehicle’s level of automation. Perhaps the vehicle was equipped with a Level 2 system which required the driver to not only be able to assume control and responsibility for the vehicle but also be fully cognisant of the surrounding circumstances or it was a Level 3 system which only required a driver to be ready to assume control of the vehicle in an emergency situation. Or perhaps it was a Level 4 system where the vehicle assumes complete control over the vehicle and doesn’t require a driver’s input in most conditions.
Clearly, the level of liability fluctuates with the level of control that a manufacturer (or third party producer) gives to the vehicle. These levels need to be clearly communicated to a user to ensure that someone, or something, is responsible for controlling the vehicle at all times.
3. The Driver (operator)?
The classic target – humans. Manufacturers are typically not named in law suits stemming from a motor vehicle accident (save for a product liability claim), rather, the individual driver is typically held liable for an accident that they orchestrated. But what about the promise of complete safety on the road given by autonomous vehicle manufacturers? What is reasonably expected by an average driver of a vehicle that is claimed to be autonomous? Can a contract between a manufacturer and a driver predetermine liability? Why would consumers trust technology and voluntarily assume liability for an accident that a car was designed to prevent?
In order to determine the liability of a driver of an autonomous vehicle, courts will need to consider the above questions. Courts will have to determine what a “reasonable person” would expect from their autonomous vehicle, what agreement was entered into between the manufacturer and the driver, and of course, what were the circumstances of the loss.
4. The Victim?
Contributory negligence will remain a key component of most law suits where a victim contributed to their own injury. However, the court will be tasked with determining whether a potential victim was owed a higher duty, if one was owed at all, by a manufacturer of a self-driving vehicle – they did after all promise safer roads. This is an unprecedented consideration, but I supposed its fitting considering the topic.
Perhaps one of the biggest considerations is the effect that autonomous vehicles will have on the insurance industry. Underwriters will have to take a more active role in determining the capabilities of a vehicle that is being insured and more importantly, if those capabilities are in fact able to prevent potentially fatal accidents.
Adjusters will need to be cognisant of potential misrepresentations made by their clients in the course of obtaining an insurance policy as well as their ongoing duty to disclose material changes (i.e. the addition of a self-driving apparatus to their car).
Regardless of how you feel about Skynet, the tragedy in Arizona will soon shed light onto whether our society and legal system are prepared to accept and handle significant strides in technology. We will keep you updated as the story progresses.
Stas practices in insurance-related litigation. He has a broad range of experience including tort claims, accident benefits, subrogation, priority and loss transfer disputes, WSIB matters, and fraudulent claims. Read more...