Insurance & liability implications of the transition to self-driving vehicles

The future is already here …but are we ready for it? www.tesla.com

The current landscape: Vehicle Control: Electronic Stability Control (ESC), Roll Stability Control, and Traction Control; Warning and crash mitigation: Blind Spot Detection, Forward Collision Warning and Braking, Lane Departure Warning, and Lane Keeping Assistance; Visibility: Advanced Forward Lighting Systems, Backing Aids, Night Vision Systems, and Pedestrian Detection; Other driver assistance: Adaptive Cruise Control, Brake Assist, Anti-Lock Braking Systems, Driver Monitoring, Speed Alert, and Tire Pressure Monitors.

Ontario roads: Vehicles equipped with SAE Level 3 technology, available for public purchase in Canada, can be driven on Ontario roads (they are no longer be restricted to registered pilot participants). Vehicles with aftermarket SAE Level 3 technology remain restricted to the pilot program. The pilot program now allows driverless testing on public roads; and The human overseer can be a passenger onboard the vehicle, or someone monitoring the vehicle remotely.

Autopilot owner manual warnings: Warning: Do not use Traffic-Aware Cruise Control on city streets or on roads where traffic conditions are constantly changing and where bicycles and pedestrians are present (p. 68). Warning: Autosteer is intended for use only on highways and limited-access roads with a fully attentive driver (p. 74). Autosteer is intended for use on freeways and highways where access is limited by entry and exit ramps (p. 75). Autosteer is a hands-on feature. You must keep your hands on the steering wheel at all times (p. 74)

Autopilot warning hierarchy: “Hold Steering Wheel.” auditory chime; 2nd, louder chime; “To Maintain Set Speed Place Hands On Steering Wheel”; (Deceleration to full stop and hazard lights activated)

Telemetrics: 2016 collision: Autopilot active 37 minute Driver applied torque 7 times, totaling 25 seconds Longest gap between steering wheel contact ≈ 6 minutes 2018 collision: Autopilot active 19 minutes Driver applied torque 34 of the final 60 seconds Hands last on the steering wheel 6 seconds prior to impact

Ntsb conclusions: Probable causes: truck driver’s failure to yield the right of way, and car driver’s inattention due to overreliance on vehicle automation Contributing cause: system design, which permitted prolonged disengagement from the driving task Found no defects in the automatic emergency braking system.

Product liability: Required elements for negligence: the product was defective or dangerous; the defendant owed a duty of care to the plaintiff with respect to the product; the defendant was negligent in failing to meet the applicable standard of care; the defendant’s breach of the standard of care caused or contributed to the defect; the defect caused or contributed to the plaintiff’s damages or injuries; and the plaintiff’s damages or injuries were reasonably foreseeable.

Product liability: Affirmative defences: the plaintiff knew of and accepted the risk or defect; the plaintiff improperly used or maintained the product; the plaintiff or a third party repaired or modified the product in an improper or unforeseeable way; there was an unforeseeable intervening act or event which caused or contributed to the plaintiff’s injuries; and the plaintiff contractually waived his or her right to sue.

Liability issues: The sufficiency of warning(s); The system design; The importance of accuracy in advertising and marketing around the Autopilot’s capabilities; Whether Autopilot should have been designed so as to be able to detect cross-traffic, given the likelihood of that occurring;

Divergent levels of automation: Rental car fleets; Cyber liability; Role of Government

Policy wording issues: Who will have the primary burden for insurance? Impetus to move to no-fault based system? New exclusions; eg Hacking, Communications interruption, Servicing Use-based premium pricing?

Ethical dilemmas: Adaption of the “Trolley Problem” Least worst case Divergent preferences Responsibility for settings What (if anything) should be left to insurers? Social / societal changes Privacy issues

In closing: The NTSB draws an analogy with the aeronautical industry – there will always be a need for pilots. However, unless driver licencing becomes a lot more restrictive, even with the “human monitor” there will always be some idiots behind the wheel! DISCLAIMER: This presentation is intended to give general information about legal topics and is not a complete statement of the law. It is not intended to be relied upon in the absence of specific legal advice on particular circumstances. Accordingly, we do not accept any liability for any loss which may arise or result from reliance on this presentation or the information it contains.