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In the driver’s seat

Legal Report: Personal Injury
|Written By Mallory Hendry
In the driver’s seat
Illustration: Matthew Billington

Should personal injury lawyers be preparing for driverless cars?

As the development of autonomous vehicles marches forward, personal injury firms should be thinking about the future of their practice. Fredric Litwiniuk, of Litwiniuk & Co. Barristers and Solicitors in Calgary, says his firm has already seen a reduction in accident files with the onslaught of new safety features in cars — the amount of files has stayed the same despite population increase — and expects that trend to continue as the technology trickles from luxury cars into the mainstream market.

Driverless cars, and what they will mean for the business of personal injury law, is always on the mind of his firm as it readies for “some sort of transition,” whatever it may look like.

Litwiniuk, director of business development and marketing at his firm, says personal injury lawyers, like any other lawyer in a practice area that is changing, have to be “ready and willing to adapt to the new situation.”

While from a human standpoint, anything that reduces the number of accidents is a positive thing — “We see first-hand the kind of impact it has on lives,” he says — from a business standpoint, “we just have to be cognizant that this is something that’s coming and start positioning ourselves for the transition in law, the transition in practice.”

It’s always hard to predict the future, he says, but for him, “the potential to reduce the number of accidents and fatalities on the roads is huge and can’t be ignored.”

Litwiniuk says his practice will be better prepared when — not if — these autonomous cars hit the market.

“I would discourage anybody — in any profession or any business — from swimming against that kind of tide. Something like this, when it happens, is going to be monumental.”

On Nov. 28, the Ontario government announced the first automated vehicle pilot program in Canada. The University of Waterloo, BlackBerry QNX and the Erwin Hymer Group are the participants, with Waterloo trying out a Lincoln MKZ as part of the WATCar Project from the university’s Centre for Automotive Research, a 2017 Lincoln being tested by BlackBerry and a Mercedes-Benz Sprinter Van being monitored by Erwin Hymer.

The announcement came after Ontario became the first province in Canada to create a pilot regulatory framework to test automated vehicles on the road, which happened on Jan. 1 and is set to run for 10 years with staggered interim reports. Ontario has provided $2.95 million in funding, and the Institute of Electrical and Electronics Engineers predicts that by 2040, 75 per cent of all vehicles on the road will be autonomous.

But even though automated vehicles are on the radar as a real possibility, the concept doesn’t translate so seamlessly into real life.

“The existing pilot regulation is so far away from dealing with fundamental legal issues of full driverless operation of cars that it just highlights the inability and unwillingness by lawmakers to step anywhere close to putting on paper any rules for AV operation without a human being inside as a potential driver,” says Elliott Ambridge, name partner at Ambridge Law in Toronto.

 “We think it’s going to be a long time and our careers will be long over before any of that is introduced on the roads,” he adds, saying semi-autonomous cars or autonomous public transportation vehicles are more likely.

“Some cars might be introduced, but for a long time, there will probably be more human-driven cars than automated cars — not everybody will adopt technology so fast.”

Litwiniuk agrees that younger personal injury lawyers are probably the ones who will be focusing on these changes, saying business in general “tends to be more reactive than proactive with things like this.”

David Parker, partner at Boyneclarke LLP in Dartmouth, N.S., says the continued developments in Ontario “certainly cause us to pause.”

One of the big questions is who, with no “driver,” would be liable if something goes wrong with an autonomous car and somebody is injured. But he has reservations about widespread, individual, fully autonomous vehicles.

“I could see it becoming a little bit more complicated [to find the defendant], but I’m not sure there could ever be a technology that could eliminate accidents,” he says.

Ambridge agrees with him, saying people equate driverless cars with no accidents, but that’s not the case. If a driverless car is programmed to be risk averse, it would have trouble making the risky decisions humans are capable of making that actually help to avoid accidents.

Also, Ambridge and Litwiniuk both point to the “crossover” time when people are transitioning to autonomous or semi-autonomous vehicles.

The biggest dangers for self-driven cars are human-driven cars because people “will not be able to analyze the mind and the risk-averse behaviour of this computer,” Ambridge says. “We might have an influx of accidents happening especially in the beginning of this technology being widely introduced.”

There’s a middle ground that Ambridge thinks we’re headed toward with this technology — a semi-autonomous car that still requires an alert and able passenger who would be responsible for taking over whenever something unexpected or serious arose and who would be liable if they did not step in.

He points to the ever-advancing safety features in cars on the road today, and says all of those have disclaimers that make it clear they do not abdicate the driver of responsibility. They might be excellent tools in reducing accidents, but Ambridge says there is still a role for personal injury lawyers in defending accident victims against the insurance company that would allege the safety features must not have been used properly. This would carry over to semi-autonomous cars, where insurance defence lawyers would try to claim the passenger’s actions — or lack of actions — caused the accident.

“If there is a way for the passenger to affect the vehicle and take control of it in any way, there’s always the possibility to allocate 100-per-cent of liability toward that person — which really means that our current framework of insurance laws might actually stay almost the same, or at least this part of it,” Ambridge says, adding there will always be a lawyer on the insurance side trying to defend the company from paying out for the accident.

Parker says if a protocol is introduced and implementation begins, his firm would look into it, “but it has to make sense from a business standpoint.”

Litwiniuk says it’s understandable that firms are taking that approach, but he wants to be ahead of the game.

“When you’re good at something, you’re making money at it, you’re really focused on that, you talk about these things in the abstract, but really thinking about them and what to do about them, it’s hard to divert resources within any business to really focus on something like this,” he says.

“Unfortunately, I think what happens with things like this over and over, whenever there’s a disruptive technology, even though people can see it coming and get a vague idea what it’s going to look like, when it actually happens, it seems like most people are taken by surprise.”

While he doesn’t expect seismic shifts overnight, Litwiniuk says his firm is taking the approach that the advent of more autonomous vehicles, and a corresponding drop in personal injury files, is inevitable. “Computers ultimately will do a better job of driving vehicles than humans do. Right now you have computer autopilot flying planes and they do a pretty great job of it,” he says, so “let’s prepare for it, let’s get ready for it, and look at the other ways we can still be of benefit for the general public because that’s what lawyers are here for.

“The lawyers who start thinking about that and are ahead of the curve on that are going to be the ones who can start doing work in those areas and start capitalizing on those opportunities,” he says, noting the firms that have expertise in personal injury probably have less to worry about than firms that “dabble.”

“Yes, some areas will diminish, but other areas may arise out of this that we haven’t even thought of.”

Ambridge expects results of the Ontario government’s pilot program — including research into the effects of self-driving cars on different issues, such as economics and safety — some time this year.