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Civil Machines: The Current State Of Autonomous Vehicle Liability – Rail, Road & Cycling


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.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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