Canada: Update On Issues Relating To Autonomous Vehicles: Recent Fatality & The Anticipated Challenges Arising From The Accident

News of the death of Joshua Brown, a Florida man who died following a motor vehicle accident that occurred while his Tesla Model S vehicle was in autopilot mode, has attracted international media attention as he is the first U.S. fatality from a motor vehicle accident where the deceased was in a vehicle that was in self-driving mode. This development provides occasion for us to comment further on the status of autonomous vehicles and the law in Ontario.

The accident occurred on May 7, 2016 in Williston, Florida when Mr. Brown's vehicle collided with a tractor trailer. Reports indicate that the cameras on board the Model S, which are a main feature of the vehicle's autopilot system, failed to distinguish between an oncoming tractor trailer and the bright sky. As a result, the vehicle failed to automatically activate its brakes and collided with the trailer.1,2Later reports indicate that in spite of the autopilot failure, human error may have also been a potential cause of the accident as there are indications that Mr. Brown was watching a movie at the time of the accident while other reports indicate that Mr. Brown might have been speeding at the time of the collision.3,4 Interestingly, Mr. Brown posted numerous videos to Youtube of him operating the Tesla Model S while watching movies and also credited the vehicle for avoiding a collision on another occasion and saving his life.5,6

The National Highway Traffic Safety Administration (NHTSA) in the United States recently announced its investigation into Mr. Brown's death.

Tesla Model S Instructions and Beta Testing

Tesla states that the autopilot feature of the Model S vehicle is still in beta phase, meaning that numerous features are still being tested and re-developed.Tesla notes that drivers are told to be attentive when operating the Model S vehicle. Additionally, the autopilot system instructs drivers to keep their hands on the wheel at all times and be alert to changing road conditions.7 The autopilot system also makes frequent checks to ensure that drivers are following instructions by using visual and auditory alerts to notify drivers if they are not keeping their hands on the wheel. The vehicle itself will slow down if drivers do not respond to these alerts.8 In essence, the Tesla Vehicle attempts to ensure that drivers are in control over the vehicle and prepared to take over at any time.

Worldwide, Tesla estimates that its vehicles have accumulated 130 million fatality-free miles while operating in autopilot mode.9 As statisticians estimate that there is one fatality per 60 million miles around the world, use of automated vehicles could reduce fatalities by over 50%.10

Despite the obvious benefits associated with automated vehicles, there are reasonable concerns that autopilot systems that rely on cameras are not currently "sophisticated enough to overcome blindness from bright or low contrast light".11 Other motor vehicle manufacturers, such as Ford,have had similar issues with automatic breaking systems in their vehicles. In particular, Ford indicated that these systems can become confused when passing large, reflective trucks.12

Liability in the Use of Autonomous Vehicles

As we have discussed before, the use of automated vehicles has the potential to reduce or even eliminate motor vehicle collisions.13 Currently, an estimated 94% of all motor vehicl eaccidents are caused by human error.14 The Tesla statistics indicate that this margin of error could be reduced through the use of automated vehicles. However, the recent death of Mr. Brown may paint a different liability picture in the courts.

As we have also discussed before, parties that could be liable in an autonomous motor vehicle collision include the manufacturer of a component used in the autopilot system and the software engineers who program the system.15 16 However, drivers may also be found to have contributed to the accident. Tesla Model S drivers in particular are instructed to take safety precautions when operating their vehicles. Those who forego precautions and engage in distracted driving practices, such as watching videos or sending text messages, could have a finding of contributory negligence made against them. There are countless examples where the Courts found a party contributorily negligent for knowing of hazards and failing to take appropriate precautions or for engaging in unsafe activities due to possible distractions.

Nonetheless, there is no judicial treatment on the duty and standard of care for operating an autonomous motor vehicle.Furthermore, there is no legislation in place to regulate the use of these vehicles on highways in Ontario. As of January 1, 2016, the Ontario Government began testing the use of autonomous motor vehicles and enacted legislation that permits limited use of autonomous vehicles and automatic driving systems for the pilot initiative.17 18 As such, while consumers can purchase the Tesla Model S in Ontario with the autopilot feature included, use of this feature is not authorized for everyday use.

Conclusion

As far as the use of autonomous vehicles is concerned, developments in technology continue to outpace developments in the law. One can hope that Ontario lawmakers and legal professionals will take the death of Mr. Brown as a warning about the obvious challenges created by autonomous systems.Similar to Tesla, the Ontario government now has an opportunity to test the various circumstances in which these systems could malfunction and legislate accordingly. The legislation could consist of anything from restricting the use of autonomous vehicles to requiring manufacturers of autopilot systems to conduct additional safety testing. The only certainty here is that the death of Mr. Brown gives us all pause for thought about how such incidents can be avoided in the future.

Footnotes

1. Joan Lowy and Tom Krisher, Tesla driver's death using car's "Autopilot" probed by the NHTSA, online: Business Insider

2. David Z. Morris, What Tesla's Fatal Crash Means for the Path to Driverless Cars, online: Fortune

3. Supra note 1.

4. Supra note 2.

5. Joshua S. Brown, Autopilot Saves Model S (video),online: Youtube

6. Supra note 1.

7. The Tesla Team, A Tragic Loss, online:Tesla

8. Ibid.

9. Ibid.

10. Ibid.

11. Ibid.

12. Ibid.

13. Hussein,Mahdi, Autonomous Vehicles - The Next Frontier , online: McCague Borlack LLP

14. Supra note 1.

15. Supra note 13.

16. Hussein,Mahdi, Autonomous Vehicles - The NextFrontier , online: McCague Borlack LLP

17. Ministry of Transportation, Ontario First to Test Automated Vehicles on Roads in Canada, online: Government of Ontario

18. O Reg 306/16, ss 4, 9, 11-12.

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