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The legal question everyone should be asking about self-driving cars

What an injury lawyer wants you to know about AI vehicles

Self-driving car
Self-driving car

When he was growing up, Bergeron Clifford lawyer Warren WhiteKnight loved science fiction, and lately his passion is coming in handy at work. 

While teleportation and AI robots once seemed like a scene from the future, today we’re not so far off. That’s why WhiteKnight has been learning everything he can about self-driving cars and the laws surrounding them.

This is good news for the rest of us. Pondering the legal, ethical, and logistical quandaries of autonomous vehicles is unlikely to be a priority for the average person. And that’s a problem for people living in areas with inclement weather like Eastern Ontario.

WhiteKnight says at some point in the future, we’ll have the ability to have nothing but autonomous vehicles on the road. “The questions between now and then are a) do we want that? and b) how do we make legislation work so there is proper, fair and affordable insurance coverage available for everyone?”

WhiteKnight sees two potentially thorny legal issues.

How do you insure a driverless car?

How do you determine fault without a driver? 

I, Algorithm: How do you insure a driverless car?

Right now, cars are operated by drivers (humans). Autonomous vehicles will be operated by an algorithm (AI). 

Insurance companies know how to set premiums when insuring humans. First they assess a driver’s risk with data like demographics. That’s why an 18-year-old male is charged more for car insurance than a 42-year-old woman. Then they set premiums high enough to cover off all of their statistical and likely liabilities so they’ll make a profit.

The problem facing a potential self-driving car owner is there’s no easy mechanism for determining an algorithm’s risk.

“It’s not a given that our current legislation and insurance regimes will work with fleets of autonomous vehicles – in fact I don’t think they will,” said WhiteKnight.

Elon Musk, one of the biggest champions and manufacturers of autonomous vehicles, has already figured this out. You can now insure your self-driving Tesla through Tesla’s own insurance company in Oregon, Colorado and Virginia. Tesla monitors driving behaviour in real time and assigns a score based on the results. How this approach would apply to autonomous vehicles isn’t clear, but the shift from using data from the past to data in real time is likely an important one. 

Who’s at fault for an accident when there’s no driver?

Can someone legally hand their personal responsibility over to an algorithm? Probably not.

Let’s say you’ve bought a Tesla, insured it through their company and are ready to hit the road. 

What do you need to know before switching to automatic pilot? The first thing is that by choosing to operate a self-driving car, you may be responsible for what the car does – even if you’re technically not the one driving. The second is that you can’t pop into the back seat for a nap. It’s your job to be monitoring what your car is doing. And third, while you’d think operating a self-driving car isn’t as taxing as driving, it can actually make you sleepy.

WhiteKnight is careful to point out that the average person is likely to assume any vehicle approved by Transport Canada would be safe to use. Why would they need to be responsible for a problem when the technology is supposed to be safe?

This is a conundrum indeed.

Potential solutions

“You can’t regulate a technology you don’t understand,” said WhiteKnight. Meaning governments, insurance companies, and injury lawyers must become subject-matter experts on self-driving technology before attempting to tackle it. Governments have typically found it challenging to regulate internet and social media giants in part due to the complexity of the technology and the business models. 

When attempting to regulate self-driving cars, WhiteKnight fears the government will run into similar issues. “If our goal is to have as many autonomous vehicles as possible because it can be proven that they are safer – why else would we want them – then our legislation and insurance will need to adapt,” he said. “We’re going to need a robust change to our laws.”

If the insurance industry won’t take on the risk to insure self-driving cars, WhiteKnight says there could be a scenario that requires the government to step-in and force them to assume the risk. This could mean creating a compensation fund or auto manufacturers may need to offer an insurance product, like Musk is doing with Tesla. We’ll need assurance that victims of negligence involving self-driving cars will be compensated fairly while the legislation is worked out. 

Critical to making this work are the experts. Any such fund or these new forms of insurance will need to be administered and regulated by people who have enough expertise to understand both the legal landscape and the technology. This could be a tall order. Solving these challenges will require cooperation between legislators, self-driving car manufacturers, the auto insurance industry, and lawyers like WhiteKnight who represent accident victims. 

Bergeron Clifford is ready to play its part 

“In pursuing cases with technological aspects, we regularly hire professional academics and experts,” he said. “We (and I’m sure our judges) are carefully watching some of the early cases in the U.S. where Tesla, Google, and Uber have tested their autonomous driverless cars and lawsuits have followed.” 

Proceeding cautiously is key. “Technology is a tool, but just because it exists doesn’t mean it needs to be used,” said WhiteKnight.

In the end, you can never completely remove human error when using a technology that was created by humans.