Canada: Self-Driving Cars: Taking The Wheel Out Of Your Hands

Self-driving cars are no longer something we can only imagine in futuristic movies. Taken right out of James Bond, Land Rover's Range Rover Sport is already capable of being controlled via smartphone like a remote-controlled car. Subaru's EyeSight system has the ability to independently adjust cruise control to maintain a safe distance from the car ahead. Tesla's vehicles are equipped with a system, aptly named "autopilot", that allows for near-full control of the vehicle during highway driving using radars and cameras to stay in the middle of a lane, transition from one highway to another, and even automatically change lanes without requiring driver input. The technology is already here, and if your car is relatively new, it's probably already in your own driveway to some degree...

What is an autonomous vehicle, exactly?

The government of Ontario defines autonomous vehicle as a "driverless or self-driving vehicles that are capable of detecting the surrounding environment using artificial intelligence, sensors and global positioning system coordinates".1

However, the distinction between an autonomous and semi-autonomous vehicle is an important one, and will be increasingly more at the forefront of discussion. Whereas autonomous vehicles are, as above, fully capable of being operated without human input, semi-autonomous vehicles are those that require a driver for most normal applications of operation. These semi-autonomous vehicles have functions that allow the vehicle to take over some controls of the vehicle to attempt to avoid or lessen the severity of motor vehicle accidents, such as emergency breaking, adaptive cruise control and lane avoidance signaling.

With new technology comes new responsibility to keep our roads safe

According to the Ontario Ministry of Transportation, on January 1, 2016, a new program was launched to allow auto manufacturers, under specific regulations, to begin testing on self-driving cars, or autonomous vehicles. Interestingly, Ontario is the first province in Canada to allow road tests of autonomous vehicles.

driverless or self-driving vehicles are capable of detecting the surrounding environment using artificial intelligence...

The implementation of the pilot project has strict rules and restrictions to ensure safety for those involved with the testing phase of these cars. For example, the pilot is restricted to using these vehicles only for testing purposes, only vehicles manufactured and equipped by approved applicants are permitted and the driver must remain in the driver's seat of the vehicle at all times and monitor the vehicle's operation, to name but a few. The full list of the parameters and rules related to the pilot project is set out in Regulation 306/15 Pilot Project-Automated Vehicles, a regulation under the Highway Traffic Act.2

Turning the tables on liability

The introduction of this new groundbreaking technology comes with legal uncertainties. Litigation specialists can't help but wonder how courts will determine liability when self-driving cars are involved in motor vehicle accidents.

This issue has already come up several times worldwide. The first known death associated with autonomous vehicle function occurred recently in Florida, USA on May 7, 2016, where a man was killed in a motor vehicle accident while driving a Tesla Model S with 'autopilot' engaged.

Tesla issued a statement following the tragedy and indicated that though the autopilot is getting better all the time, it is not perfect and still requires the driver to remain alert while the car is in use.3 In fact, when the self-driving mode in Tesla vehicles is activated, there is an acknowledgment box that specifically warns drivers that the mode should be used as an assist feature only and that the driverâ€"s hands should still remain on the steering wheel.

Venturing into unknown territory with liability

The golden question remains: If a motor vehicle accident involving an autonomous or semi-autonomous vehicle occurs, who will be held liable, the car or the driver?

The answer will likely depend on the specific facts of the incident. For example, these could include: Whether the autonomous hardware of software malfunctioned, whether the owner properly maintained the vehicle, or whether the driver correctly operated the vehicle while the autonomic functions were enabled.

With the introduction of these autonomic and semi-autonomic vehicles, the courts will be assigned the new task of determining liability. The determination of liability gets complicated when considering that, no automobile manufacturer creates all components of its vehicles "in-house": the reality is that the hardware and software for these autonomous functions are created by numerous parties.

Determining fault will likely require a determination of what specifically caused the incident. Various parties may be on the hook when a motor vehicle accident involving an autonomous or semi-autonomous vehicle occurs. For example, these parties may include the software development team, the manufacturer of the camera sensors, and the owner and operator of the vehicle. With that said, one thing is certain: the number of party litigants is going to increase in these cases.

To date, there is no case law on this topic that we can look to for guidance; however, it will be interesting to see how the courts will treat the introduction of this new technology in the determination of liability for motor vehicle accidents.

In Ontario, the courts look to the common law for direction in determining liability in litigation involving motor vehicle accidents. Now, with the impending introduction of autonomous vehicles, it will be interesting to see how product liability will be incorporated into the determination of liability by the courts. Courts similarly look to the common law for authority in determining product liability, but can also look to provincial legislation governing consumer goods, such as the Ontario Sale of Goods Act.4

Only time will tell if this new technology will, in fact, lead to fewer motor vehicle accidents, thus reducing the associated costs for insurance companies.

It is not yet known how auto insurance will be affected by autonomous vehicles. With the promise of making driving safer, should insurance premiums be reduced for those who drive safer vehicles? This will of course beg the question as to whether autonomous functions actually make vehicles safer.

Only time will tell if this new technology will, in fact, lead to fewer motor vehicle accidents, thus reducing the associated costs for insurance companies. It is almost certain that auto insurance policies will require an update to keep pace with the burgeoning proliferation of autonomic and semi-autonomic vehicles.

Costs aside, the interplay between auto insurance policies and commercial general liability policies will certainly need to be addressed, at least from the product liability perspective, since many commercial general liability policies, including those which cover software or camera manufacturers, specifically exclude coverage for liability arising out of the ownership or use of an automobile. This leads to the question that if an autonomous vehicle's software or camera fails, which, in turn, leads to a crash, could the software or camera manufacturer's insurer deny coverage based on the fact that liability arouse out of the use of an automobile? Under the current wording of insurance policies, this is a possibility.

While it is clear from the above that there are many uncertainties with respect to autonomous vehicles, at least from a legal perceptive, our lawyers will continue to keep abreast of liability issues surrounding automatous vehicles, so as to keep our clients updated to this ever changing area of transportation law.

Footnotes

1. Ontario Ministry of Transportation, Ontario First to Test Automated Vehicles on Roads in Canada, Province Supports Innovation in Transportation Technology, 2015(Ontario, Ministry of Transportation, 2015)

2. O. Reg. 306/15: Pilot Project - Automated Vehicles, under the Highway Traffic Act, R.S.O. 1990, C. H.8

3. The Tesla Team, A Tragic Loss, June 30, 2016,

4. Sale of Goods Act, RSO. 1990, c.S.1.

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