Who’s at fault when a self-driving car is involved in an accident?

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A visitor experiences a driverless car by Pony.ai during the World Artificial Intelligence Conference 2018 in Shanghai on Sept.18, 2018.

STR/AFP/Getty Images

Predicting the future is never an easy task.

But the Insurance Bureau of Canada (IBC) took a stab at the seemingly impossible this month when it released a new paper titled, Auto Insurance for Automated Vehicle: Preparing for the Future of Mobility.

The report, the result of two years’ work consulting with insurance and legal experts, highlighted three recommendations.

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The first is to establish a single insurance policy to cover both driver fault and automated-technology malfunctions to make liability claims easier. The second is to set up a data-sharing arrangement between vehicle manufacturers, owners and insurers to help determine cause in an accident. Finally, the third recommendation is to update the federal vehicle safety standards to factor in new technology and cybersecurity standards.

While nobody knows exactly when automated vehicles will be commonplace on Canadian roads and highways, manufacturers such as Nissan, Ford and Volvo have targeted the 2020s as a realistic goal. But IBC felt the need to make its recommendations for a time when there is a fairly balanced mix of new and old technology driving around the streets.

“The single policy is for the world where you have conventional vehicles on the road and you have vehicles that have increasing levels of automation on the road,” says Ryan Stein, IBC’s director of auto policy and innovation, and the lead member of staff on the report.

Right now, he adds, if an innocent party were to be injured in a collision, they would get compensation from their own insurer, but if that wasn’t sufficient, they could file a liability claim against the driver responsible for the accident.

But with automated vehicles hitting the road in the future, it may well be that it wasn’t the other driver that caused the collision, but the technology contained within the vehicle. So the injured person would have to file a liability claim against the vehicle manufacturer or technology provider, both of which would take far longer than the usual collision claim that is processed now.

“The single policy solves that problem because regardless of if the person or the technology caused the collision, the injured person would file a liability claim with the exact same insurer and that insurer would pay it out regardless of cause,” Mr. Stein says. If the insurer believes it was the technology at fault for the accident, it could then try to recoup the costs from the vehicle manufacturer or technology provider.

One of the bigger issues that is going to crop up until the time when every car on the road is fully autonomous is the concept of a driver switching back and forth between autonomous modes and driver modes, and which mode the car was in at the time of the collision.

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“The more and more vehicles we have with that high-level automation, the more and more you’re going to have instances where the injured party doesn’t know whether that vehicle is in autonomous mode or not,” Bob Love, a partner with Borden Ladner Gervais LLP in Toronto, says.

Mr. Love, also a member of IBC’s autonomous vehicle expert legal panel for the report, says that to make a single insurance policy work effectively, mining the data from vehicles involved in collisions is vital. The report focused in on 11 data elements, ranging from whether a vehicle was in automated mode to the length of time since the last driver interaction in the lead-up to a collision.

But while Mr. Love says that getting a data-sharing agreement in place is vital to the effectiveness of IBC’s recommendations, he also recognizes that it may well be hard to implement and legislate.

“I imagine that’s going to be difficult for a couple of reasons,” he says. “Canada has very stringent privacy legislation, so any sort of data sharing agreement has to be very respectful and mindful of the ability of one party to share data with another party that may contain personal information.”

While the data-sharing arrangement throws up a lot of questions over who would control and host that data, it would go a long way toward helping apportion blame in an accident, particularly if a driver is abusing the use of automation. For instance, Mr. Love says, if certain automated features were only to be used when the roads were dry, and a driver decided to switch them on in the middle of a thunderstorm, data would allow investigators to decipher the cause of the accident.

“I don’t think that the driver would be in any way held accountable for not using it in autonomous mode when they could,” he says. “But I do caution that if the driver is using the vehicle in autonomous mode when they shouldn’t, that’s a bigger issue.”

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With human error the primary cause of more than 90 per cent of collisions, according to the United States National Highway Traffic Safety Administration, a gradual switch to automated driving can only help lower that rate.

However, according to Canadian Automobile Association spokesperson, Ian Jack, while it is good for IBC to get the ball rolling with its paper, the reality of fully autonomous highways and byways is still a long way off.

“There’s no consensus on when we’re all going to be in automated vehicles but I’ve seen nobody credible say it’s going to be taking over the market in less than 10 or 20 years,” he says. “A lot of people talk about 2040, 2050, so we shouldn’t be waiting until then but we’re not, but nor do we need to move on this instantly.”

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