In 2016, automakers predicted that autonomous vehicles (“AVs”) would hit the road for widespread consumer use as early as 2021. It’s now 2022 and human-operated vehicles still dominate the road. While the reasons for the delay aren’t particularly clear, it’s obvious that VAs still have a long way to go (pun intended). A recent study of the American Automobile Association found that AVs attempting to negotiate an intersection with a cyclist hit 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 urban roads is likely inevitable. The advent of AVs means that human drivers will play an ever smaller role in vehicle operation. VAs are unlikely to be completely autonomous from their inception; rather, the initial phases of AVs will be semi-autonomous, allowing drivers to hand over control of their vehicle to artificial intelligence or automated driving systems (“ADS”) while their vehicle is in motion.
In theory, AVs will and should reduce the number of accidents we have on our roads. However, accidents are unlikely to be a thing of the past – especially they will be as 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 could result from faulty artificial intelligence, software or product design. As responsibility for future accidents shifts from drivers to manufacturers, the law will also have to evolve with them. However, there has been little discussion about how we legislate and govern these vehicles once they are ready to roll. One area of concern that will need to be addressed will be the determination and allocation of civil liability for bodily injury resulting from motor vehicle accidents involving AVs. Fortunately for us, our friends across the Atlantic have taken over in this regard.
Automated and Electric Vehicles Act 2018
In the UKthe 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 to the current traditional insurance regime in that it prescribes direct liability of 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 all damages caused by the AV, whether these damages are suffered by the insured or a third party.
In January 2022the UK Law Commission completed a joint report on the regulatory framework for AVs in the UK.(https://www.lawcom.gov.uk/project/automated-vehicles/) This report has provided an overview of potential issues regarding liability, among other issues, that are likely to arise as AVs become more ubiquitous in Canada.
Problem #1: Exclusion from Coverage
Section 3(2) of the AEVA excludes coverage in cases where the accident is “entirely due to the negligence of the person in allowing the vehicle to start driving itself when it was not appropriate to do so”. This section places liability on the driver if he negligently engages the ADS while operating the AV.
The UK Law Commission suggested that a possible solution to this dilemma would be to ensure that autonomous vehicles could only operate under ideal conditions. But limiting ADS to only the most ideal conditions will likely deter consumers in countries such as Canada, to embrace technology all together. Therefore, such an exclusion may not be feasible if the initial phases of the technology are to be deployed in Canada.
Problem #2: Secondary Claims
The AEVA allows insurers directly liable vis-à-vis an injured party to take secondary action against any other party that may be at fault, whether the driver of another conventional vehicle and/or manufacturer.
Article 5 of the AEVA stipulates that a secondary claim against another offending party can only be brought after the aggrieved party’s claim is settled either by judgment, arbitration award or binding settlement.
It seems the intent of Section 5 is to incentivize early resolution of primary claims since secondary claims against responsible drivers or automakers could be stuck in court for years.
Issue #3: Causation and Contributory Negligence
article 2 of the AEVA indicates that coverage will apply when the accident is “caused” by the AV while ADS is activated. It is not entirely clear from the AEVA whether coverage applies if the VA is content causes the accident or whether there must be an element of default from the VA before coverage becomes applicable.
The UK Law Commission took a rather evasive position regarding causation, citing that it should be left to the courts to decide whether causation requires fault for the AEVA to apply.
Presumably, the UK the courts will follow the common law that fault is a necessary element of liability for damages. Deviating from current case law would greatly increase the likelihood of claims and could make insurance coverage too expensive for insurers to purchase and too expensive for consumers to purchase.
Moreover, Article 3(1) of the AEVA states that contributory negligence will remain in actions involving AVs. As such, the liability of AVs will be reduced to the extent of the negligence of the injured party.
Subsection 3(1) then specifies that contributory negligence “shall apply to a claim relating to the accident brought by the injured party against a person other than the insurer or the owner”. This article is quite vague and requires some legal gymnastics to be understood because it creates two counterfactual situations:
- The court must treat the claim as if it had been brought against a person other than the insurer or the owner of the vehicle under tort law, and
- That the insurer is at fault because of the behavior of the AV.
Alex Glassbrook of the UK Solidify, Temple Garden Chambers LLP, suggested that a possible interpretation of Article 3(1) is that it “provides for a fictitious human comparator in place of the car, to avoid difficult comparisons between human reasoning and machine reasoning when comparative fault assessment”. (https://aevlaw.com/blog/overview-of-the-automated-and-electric-vehicles-act-2018/)
Although some UK stakeholders have expressed concerns about the ambiguity of Article 3(1), the UK Law Commission indicates that AEVA was “pretty good at the moment”, citing that the courts are well equipped to consider any issues that may arise.
It seems entirely logical that Canadian common law jurisdictions should adopt a legislative regime that closely resembles that AEVA given the similarities of our respective legal systems. Of course, the Canadian scheme will likely be modified to account for regional differences (eg, climate) between nations. But the UK the experience will be a valuable “guinea pig” to study as we prepare our own legislative framework for the new world of AVs.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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