One day, in the immediate future, you might very well witness this scene from your office window. A lawyer jaywalks across a Toronto street to avoid being late for a firm risk management committee meeting. While she does so, she texts her colleague in Calgary with instructions on containing the legal liabilities arising from a northern Alberta oil plant shut-down that has already occurred in the future (a reality of simultaneity across locally-logged events across a multi-timezone world) after an eco-terrorist hacked into the plant heating system.
It is at this moment that she is struck by an autonomous delivery van.
The van was travelling the wrong way down a one-way street because the city transportation department had not uploaded a temporary change to traffic direction to accommodate a condo developer. An algorithm built into the telephone service to warn the lawyer of oncoming traffic fails to alert her because the coding engineer saved money by writing the algorithm based on map data and vehicle presence, but not directional traffic flow.
Who is at fault, and for what consequences? Cause and effect is not as simple as a driver running a red light or having had too much to drink before getting behind the wheel. If we fail to grasp legal causation in a world in which no casualty-causing events involve such “Newtonian” chain reactions, we can see the utility of tort law as a tool of justice vanishing within a few short decades. In order to adapt, tort law must develop a legal test that ‘predicts’ the past event. Tort law as ethical or moral tool to allocate adverse consequences has always involved counterfactual analysis, even in the simple ‘but for’ test. To keep it so simple would effectively defeat the corrective and distributive purpose of an important facet of our law.
In order to make better sense of the issues lawyers and judges already face and will increasingly meet, read my chapter, “Failing to Predict the Past: Will Legal Causation Kill Tort Law in Cyberspace?” in the 2017 Annual Review of Civil Litigation. Visitors of the Gilbertson Davis LLP website now have access online to this chapter. (Ed. by the Hon. T. Archibald. Reproduced by permission of Thomson Reuters Canada Limited.)
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