Civil Liability

AuthorJaye Hooper
chapter 5
Jaye Hooper
The implementation of any new technology creates questions of liability
for both the innovator and the user.1 Until autonomous vehicles are in the
general market and a body of caselaw is developed, forecasting the poten-
tial issues in civil liability is dicult. Governments view the automation of
transportation as having such promise, from both an environmental and
an urban development standpoint, that they are pushing the technology
forward. Manufacturers are wary of potential avenues of litigation. Law-
yers are creative and responsive to a changing environment.
Initial civil litigation will likely use arguments of product liability
overlapped with motor vehicle litigation principles. However, these prin-
ciples are problematic as motor vehicle accidents have one basic assump-
tion: that a human being is operating the car. When you remove the
judgment and action (or inaction) of a human being from the litigation,
the result can be problematic for litigants attempting to prove negligence.
The analysis becomes even more dicult when only partially automated
controls are enacted.
1 Andrew Swanson, “‘Somebody Grab the Wheel!’: State Autonomous Vehicle Legis-
lation and the Road to a National Regime” (2014) 97 Marquette Law Review 1085,
online: [Swanson].
106 | Autonomous Vehicles
Human behaviour will also become an essential part of this new
analysis. Early warning signs of boredom and distraction while individuals
are still in the “driver’s seat” of an automated vehicle have caused concern
over the future of this technology. Avid, tech-savvy users have also mis-
understood the limitations to the technology, with tragic outcomes. Who
is at fault when these accidents occur? Should they simply be considered
“user error,” or should a manufacturer be responsible for understanding
the tendencies of the occupants of these vehicles and their resultant vul-
nerabilities? These are the types of issues courts will have to grapple with
as the technology becomes more readily available.
In 2018, the report of the Standing Senate Committee on Transport and
Communications described the current status of automated vehicles as
With the converging automotive and technology industries, modern
vehicles already contain considerable levels of automation, including
millions of lines of code. New players, including Tesla and Google, have
shaken up the automotive industry, and taken major steps towards a
driverless and connected future.2
We are approaching the end of an era for the traditional, individually
owned, human-driven automobile. In the not-too-distant future, people
will be able to summon a driverless taxi from their smartphone and may
therefore decide to forego vehicle ownership in favour of these shared
automated vehicles. Providing an optimistic view of this developing tech-
nology, the committee highlighted the following:
This could herald the beginning of a new age of transportation, where,
for instance, the nearly 1,700 road deaths and 117,000 injuries that
2 Driving Change: Technology and the Future of the Automated Vehicle, Report of the
Standing Senate Committee on Transport and Communications (2018) at 3, online:
Senate of Canada
Civil Liability | 107
occurred in 2015 because of human error become grim relics of a primi-
tive past, and cars weave through the country’s streets with a computer-
run eciency.3
Contrast this glowing forecast with the current limitations to this
technology as summarized by the current Tesla Model 3’s owner manual:
Many factors can impact the performance of Autopilot components,
causing them to be unable to function as intended. These include (but
are not limited to):
Poor visibility (due to heavy rain, snow, fog, etc.).
Bright light (due to oncoming headlights, direct sunlight, etc.).
Damage or obstructions caused by mud, ice, snow, etc.
Interference or obstruction by object(s) mounted onto the vehicle
(such as a bike rack).
Obstruction caused by applying excessive paint or adhesive products
(such as wraps, stickers, rubber coating, etc.) onto the vehicle.
Narrow or winding roads.
A damaged or misaligned bumper.
Interference from other equipment that generates ultrasonic waves.
Extremely hot or cold temperatures.4
Many of the factors listed above are the same factors that lead to accidents
in non-automated vehicles.
1) General Liability Concepts
There are f‌ive basic elements to every claim in negligence: (1)the defendant
owes the plaintif‌f a duty of care; (2)the defendant’s behaviour breached
the standard of care; (3)the plaintiff suffered compensable damages;
(4)the damages were caused in fact by the defendant’s breach; and (5)the
damages are not too remote in law. For product liability cases, the guiding
principle began with a dead snail in a bottle of ginger beer in the central
3 Ibid at 9.
4 See Tesla 3 owner’s manual, online:‌iles/model_3_
owners_manual_north_america_en.pdf at page 81.

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