The Sensor: Autonomous And Connected Vehicles — 'Ideal' For A Class Action?

Why Autonomous Vehicles?

The technical capabilities of autonomous vehicles continue to advance and impress. Features such as automated self-parking are now blasé, making way for technology that enables vehicles without steering wheels or pedals to be manufactured in 2019.1 During operation, autonomous and connected vehicles generate and can record a significant amount of information including driving input, speed, and direction. Vehicles currently on the road may offer connected services for communications and driver aids (e.g. camera rear-view mirror, emergency braking, and reverse auto braking, etc.).

While impressive, these technologies (and the data creation that comes with them) risk system exploitation, data breach and product-wide issues. Researchers have already demonstrated the ability to penetrate connected systems2 and the risks of privacy breaches are all too well known. As increasing amounts of information are recorded and stored by autonomous vehicles or uploaded to connected servers, data from autonomous and connected vehicles will become more valuable to third-party hackers. Software or programming issues that could render an autonomous feature inadequate or unsafe would likely apply to all vehicles across a product range rather than individual vehicles.

This article considers two likely avenues for future autonomous vehicle class action litigation - privacy and product liability.

Privacy Class Actions

In the event that private data is accessed or disclosed as a result of a cybersecurity vulnerability, a class action provides one option for affected consumers. Privacy class actions are nothing new to Canada and have resulted in significant monetary settlements. While individual payments to class members are often nominal (from around $2,5003 to $5,0004 each), large class sizes have the potential to result in a high total damages award in addition to other expenses such as counsel fees and settlement administration. As an example of such exposure, in a recent case relating to a breach of personal and financial information, a defendant paid out approximately $1.25 million.5

While there have yet to be any class actions commenced in Canada for issues relating to connected and autonomous vehicles, recent litigation in the United States has considered claims relating to cybersecurity vulnerabilities in connected vehicles with varying results.

In Cahen, et al. v. Toyota Motor Corp., et al.6, plaintiffs alleged that certain Toyota...