Law Times

Page 12 September 12, 2016 • Law timeS www.lawtimesnews.com 'Liability landscape is going to change,' says lawyer Driverless cars lead to litigation changes BY MICHAEL MCKIERNAN For Law Times P ersonal injury lawyers are preparing for a fresh wave of liability litigation as the insurance market adapts to the arrival of driverless cars on the roads. Vehicles that can operate with a level of autonomy are currently rare enough that any crash involving one becomes newsworthy, such as the Florida accident that claimed the life of a Tesla driver using the company's autopilot system. The crash happened when neither the car's sensor system, nor its driver, noticed a tractor- trailer pulling out in front of the vehicle, raising questions about where the blame lay for the ac- cident. Lawson Hennick, a personal injury lawyer with Yermus and Associates in Toronto, says with technology moving fast and a number of North American ju- risdictions, including Ontario, making preparations for the ar- rival of automated vehicles, cas- es like the Florida one will soon become routine. "This stuff is not too far away. There are some conf licting re- ports out there about when au- tonomous vehicles will be ready, but it's only a matter of time before these cases start rolling into the court system," Hennick says. "The liability landscape is going to change because we'll be in a grey area when cars are able to drive themselves. The tra- ditional approach when you're involved in an accident is to sue the owner and driver of the oth- er car. Now the law is going to have to account for non-human drivers and errors." Kevin LaRoche, a partner with Borden Ladner Gervais LLP in Ottawa, says it's not just carmakers that could find them- selves the targets of lawsuits. The scope of sources for potential liability could easily extend in future to the manufacturers of products such as global position- ing systems, proximity sensors and a host of other supplies inte- gral to the proper functioning of an autonomous vehicle, he says. "All of these bits and pieces are required to make the whole system work," says LaRoche, who tackled the issue of liability as part of his report into the driver- less cars: "Autonomous Vehicles, Revolutionizing Our World". "We're trying to help clients see the future," LaRoche says. "We're talking about an impact of an order of magnitude that equals or exceeds the change- over from horse and buggy to the Ford Model T, in my view. There are very significant knock-on implications." LaRoche's report refers to a six-category scale developed by the U.S.-based Society of Auto- motive Engineers to rate the lev- el of automation in a particular vehicle, ranging from zero (no automation), in which the driv- er is responsible for all aspects of driving, to five (full automa- tion), where the car completes all driving tasks. Until we hit the top category, LaRoche's report concludes, courts should be able to deal with liability issues with- out legislative intervention. "With regards to driver liabil- ity, common law, coupled with the current legislation, may be sufficient to address liability in- volving all levels of autonomous vehicles, short of fully autono- mous vehicles which do not re- quire any level of human control. As long as a driver with some ability to assume or resume con- trol of the vehicle is present, there would seem to be a continuing basis for driver negligence and li- ability as they presently exist. It is not much different than operat- ing a vehicle with cruise control," LaRoche wrote. However, LaRoche says the key dividing line comes between level two, which involves par- tial automation, and level three, which refers to conditional au- tomation, which is the point at which responsibility for moni- toring the driving environment switches from the driver to the driving system. "When you get to level three, that's when challenges start to develop. You edge into a grey area, which at some point will require legislative interventions," LaRoche says. "The problem is you have to wait and see what the technology is and how it works before regulating it. If you try too soon, you run the risk of trun- cating development, and that's not generally what governments want to do." In Ontario, the province has started making preparations for the change by launching a pilot to allow for on-road testing of auto- mated cars matching the defini- tions in the SAE levels three and above. 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Vegotsky, CMA, CFE, CFI Assisting you in Litigation & Forensic Accounting, Financial Investigations x a F r o e n o h p e l e T 0 0 9 e t i u S 0 7 3 1 - 0 3 9 ) 6 1 4 ( , t s a E e u n e v A d r a p p e h S 5 4 evlitigation@rogers.com Toronto, Ontario M2N 5W9 (905) 731-5812 CFA, CPA, Vlit_LT_Mar10_14.indd 1 14-03-04 10:18 AM Kristian Bonn says he expects driverless cars will lead to a 'noticeable change in the work' when it comes to personal injury lawsuits. See More, page 13

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