Why winning product liability lawsuits against self-driving carmakers isn’t easy in Canada

A recent U.S. lawsuit shows it’s possible for plaintiffs to sue self-driving car makers for accidents successfully, but the hurdles in proving product liability north of the border may make such cases more difficult in Canada, a defence counsel tells Canadian Underwriter.

“It’s a much higher threshold,” says Tim Crljenica, a partner at Thomas Gold Pettingill. “When it comes to product liability for design, the plaintiff has to prove, with expert evidence, that the product design is flawed or defective, and is dangerous even if used as directed and carefully manufactured.”

In early August, a Florida jury awarded $242.5 million to the surviving victim of a crash involving a Tesla travelling on autopilot that drove through an intersection at around 60 mph. The car hit a parked car and its owners, who were standing nearby. One pedestrian died and the surviving pedestrian sued both the driver and the car manufacturer, claiming the car manufacturer was also at fault. The jury found the autopilot system was partially responsible for the 2019 collision. Tesla has appealed the verdict.

In Canada, Crljenica says, instances in which a product malfunctions and causes someone serious injury isn’t necessarily going to lead to a damages award. “Canadian law does not recognize strict liability. The plaintiff must prove that the product is not reasonably safe for foreseeable uses,” he says.

Related: Why mega verdicts in autopilot car crashes might not reach Canada

In a local example, he discusses a Fall 2024 crash on Toronto’s lakeshore, in which a passenger was unable to free herself from a burning electric vehicle because the interior door releases failed when the impact knocked out the car’s electrical system.

News reports at the time said the driver lost control of the vehicle, which then crashed and caught fire. The driver was killed and a car-wide power shutdown meant electronically operated door levers failed. Although a manual door release existed, the rear-seat passenger who survived the crash couldn’t locate it because she wasn’t familiar with the vehicle. Unable to open the rear passenger doors, she was saved when a passing truck driver stopped, broke the EV’s window and helped her escape.

Even under those facts and circumstances, he says, liability against the designer or manufacturer may be hard to prove.

“The plaintiff’s lawyers would need to provide an engineering opinion to show that there were alternatives available to the design, and that the design used…unreasonably failed to consider user safety,” he says. “There would need to be proof that a passenger would be unable to escape the vehicle beyond the specific circumstances of that one crash.”

And, in cases in which drivers use a car’s autopilot system without providing any input, he says, auto manufacturers have made efforts to explain to drivers “that they can’t just become…essentially, a passenger” and are likely protected from liability.

“If an accident resulted and you found out that the driver was just totally hands off, not paying attention, the driver is likely going to bear all liability,” Crljenica says. “The only way the manufacturer is going to be liable is if there’s something specific that was negligent about the way that they designed or built their program that caused the accident.

“That causation piece is always key. It’s not enough just to say the manufacturer did something wrong or should have done something different [for a plaintiff] to win against the defendant. You have to prove how that wrongful design or manufacture caused harm. That can be difficult.”

Related: How $200+ million EV accident verdict could upend auto claims liability

One option for a plaintiff would be to try and prove there was a major error in the autopilot system’s software. To do that, a plaintiff would have to secure engineering or computer coding experts to explain to a jury how the vehicle’s software was unreasonably written, and what should it have done instead.

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Such cases, Crljenica says, are difficult although not impossible to win. A plaintiff’s team would need to prove that a particular string of code led to harm and that an alternate coding would not have resulted in an accident. “There are a lot of hurdles. And there would likely be a lengthy process of appeals,” he adds.

Alternatively, if a day dawns when self-driving technology becomes ubiquitous and safe, could it become the community standard to the point where a driver who turns off a car’s autopilot system is deemed negligent?

“If that becomes the industry standard or the community standard, [and] most people have these cars, your decision to not use the autopilot or to turn it off would make you an outlier and could be considered an unsafe or unreasonable behavior,” he says. “I think that’s many years away, but it’s possible.”

Phil Porado

Phil, an award-winning journalist with over 30 years of experience in financial topics, has been managing editor of Canadian Underwriter for more than three years.