Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

This is our third lecture in this series—where we had initially raised this question: whether tort liability in the real world could arise because of wrongdoing in the virtual world.  In the first lecture, we set out the discussion where we talked about what is virtual reality, augmented reality and how human beings interact with those kind of issues in the virtual world.  In the second lecture, we discussed whether the harm that may be caused by a conduct or misconduct in the virtual world, could that harm be real, could it have real implications on people in the real world.  We talked about it and we concluded our second lecture coming to that conclusion that at least the mental harm/ the mental trauma could be real if not the physical harm. Then we discussed that we should consider the possibility of a tort action and go through all of the elements of tort action, not just the damages part and see whether there is a potential tort liability that may come.

In today’s lecture we will then get into the discussion of the factors of tort of negligence and apply those into the virtual world and see where it takes us with respect to any potential liability.

We begin with our disclaimer that this lecture is not legal advice.  If you have any specific questions regarding your issues, you should contact a lawyer or a paralegal or the Law Society of Ontario for any referrals.

Now I have posted previously a lecture on tort of negligence and I have described the elements of tort of negligence in detail. If you have no understanding of tort of negligence I will encourage you to first review that lecture so that you have some basic understanding because I will not go through all of the elements and explain those in detail in today’s lecture.  We’ll just go through those elements in today’s lecture. Now there are 5 elements of tort of negligence.

Number one: the defendant owes a duty of care to the plaintiff.  There must be a legal duty to call the duty of care and the court should impose that duty. If there’s no duty of care towards the plaintiff then there will be no claim for negligence. Number 2: whether the defendant breached the standard of care with respect to that particular duty. That’s called a “reasonable person’s standard” That is the second element.  Number 3: did the defendant’s breach cause the plaintiff injury or loss. It’s called causation—was the loss caused by the defendant’s breach of its duty.  Number 4: was the injury or harm / the damage that was caused to the plaintiff—was it foreseeable.  This is also called the direct connection between the breach of duty and the harm.  So it’s also called foreseeability or direct connection test.  The 5th element is: did the plaintiff actually suffer harm or loss—which is damages.  That’s something that we had covered in our previous lecture.

Now duty of care, in our scenario, with respect to the virtual world is the most important element of tort of negligence. My understanding is that so far there has not been a duty of care imposed on the online gaming industry.  We’ll talk about that and figure out when these cases arrive at court, whether the court will consider imposing a duty of care or not on the online gaming industry, on the providers of virtual world, virtual reality and augmented reality.  As I said duty of care is fundamentally an obligation not to harm others or their property.  Very common example of this duty of care is when we drive our cars on the road. You and I, when we’re on the road we owe a duty of care to other drivers and other vehicles, to passengers, to pedestrians, to their persons and their property. That’s a duty of care.  We don’t have any contractual relationship with other drivers on the road.  This duty is imposed by law on us and it applies to everybody who is driving a vehicle.  That’s an example of a duty of care that is imposed by law. And so courts impose this duty.

There are some known categories over the last 100 years or so that have been developed with respect to duty of care.  Common examples are: a doctor’s duty towards his patient, a lawyer’s duty towards his client, an accountant’s duty towards his clients, a manufacturer’s duty towards the consumer.  This has been established.  It’s called Product Liability. Every time a manufacturer creates a product, the manufacturer has some obligations, duty of care towards the consumer.  This is well-established and what we will argue in our situation is that the manufacturers of the virtual world, do they have any potential duty of care towards the users of that virtual world.

When a court is considering whether to impose a new duty of care there are certain factors that the court considers in deciding that.  We’ll talk about those factors.  Remember in my 1st or 2nd lecture I mentioned that one of the reasons why we’re talking about tort law in this case is because tort law has the capacity to evolve as the society changes, as technological advancements happen in that society and other events happen.  In this case we’re going to consider whether the court will be willing to impose a duty of care towards the providers of a virtual world towards people who use that world to commit any wrongdoings virtually—could there be a duty of care imposed or not?

One of the factors that the court will consider is foreseeability of risk or the manner of injury. What do we mean by foreseeability? A simple example is that when you’re driving your vehicle and you apply the brakes and if the brakes don’t function at the time that you want them to function, it is foreseeable that you will have an accident.  That accident could cause you injury.  So there is a risk that is foreseeable when a brake will malfunction or not function when you’re driving a vehicle. It is foreseeable.  Forseeability is the possibility of a risk and the manner of injury that that may cause.

Second thing, I think, that the court will consider is – the court will analyze any legal relationship between parties.  In our example of driving cars on the road there is no legal relationship between the parties, there’s no contractual relationship, but in many cases there may be a contractual legal relationship between parties outside of the duty of care that the court is thinking of imposing.  For example, in a lawyer-client relationship they will have a contract between the parties, a retainer agreement which creates a legal relationship between parties. Similarly, when we buy products, it is a contract—we purchase whatever item, whether it’s car or a motorcycle or a toy, we have a contract with the manufacturer/with the seller and there is a legal relationship.  The court will analyze that legal relationship in deciding whether that legal relationship plays a role with respect to imposing a duty of care on the defendant. 

The court will also consider the likelihood of the injury.   What are the chances that this particular fact may cause an injury to a person?  Then court will consider public policy with respect to who can bear the loss due to that injury.  For example, in a motor vehicle accident if a person becomes a paraplegic. Now that person has some burden on the society at large.  The court looks at the overall social circumstances in determining who bears the loss with respect to that injury.  This is the old Greek concept of distributive justice—that when harm has occurred how do you distribute justice across different sections of society so that the burden can be borne by the society at large or by parties who have the capacity to bear the burden.  Finally, the court may consider other policy considerations in deciding whether duty of care should be imposed or not.

Now let’s look at whether a duty of care has been imposed in video gaming industry or on online industry so far.  One example that I can quote to you is that one person she was following Google Maps instructions and driving on the road.  While following the instructions, she got instructions on the Google map to cross this busy highway—which was an incorrect instruction—and as she did so an oncoming vehicle struck her vehicle and she got injured. She brought this lawsuit against Google. That was in 2011, I believe in Utah.  In that case the court found that Google did not owe any duty of care to that person. 

What were some of the reasons? The court indeed acknowledged that the accident was foreseeable when you follow Google Maps instruction and you end up getting a wrong instruction and you cross the street incorrectly.  Then it is foreseeable that you will get into an accident.  And the court held that the person was ultimately responsible for their own safety.  She should have looked after their own interest and seen the road or had some visual understanding of the circumstances and looked after her own safety.  That was one reason given by the court not to find duty of care.  The other thing that the court stated in that case was that imposing a duty to warn users of all traffic hazard will be difficult, if not impossible.  That was another reason given. 

Finally, you can imagine that the court may apply similar principles in the VR and AR world. If you are, for example, wearing VR headsets and then you walk around in your room and you run into a wall or you run into the furniture or you fall from the staircase, the court may very well apply the same principles and say that you are responsible for your own safety.  You are in the virtual world and you should know your surrounding circumstances (real circumstances) better so that you don’t get yourself in those kinds of injuries.  

The problem I put to you is that these arguments (these positions) that have been advanced by the court in this particular Google case can go both ways really.  In the past, we have seen these kinds of examples (before tort law was introduced and created), where the common defence for safety issues was that you should be responsible for your own safety. But then tort law evolved—and in so many cases now we see that manufacturers are held liable for the safety of users.  So tort law has evolved in that case. Now remember that.

For example we take an example of an electric saw.  You are using the saw to cut wood.  If you put your hand up at a place where you should not and that as a result your finger gets injured or cut because of that electric saw, yes, we can argue that you should be responsible for your own safety and you should know how to use that equipment.  But if you’re using the saw properly and your hands are placed properly but for some reason the saw malfunctions and the blades come out or come out of the saw and it hits your hand or finger and then causes an injury, now that’s a malfunction of the equipment—so in that case why would the court say you should be responsible for your own safety?

Now, applying that example to our Google case: if that person was correctly following instructions provided by Google Maps and then she simply followed those instructions, then to say that you should be responsible for your own safety—it is kind of the same argument that we have already rejected in so many other court cases where manufacturers were not online gaming or not online providers but they were providers of real equipment. The argument is a bit difficult. If you are a driver like me, when I initially started using Google Maps or any other assisting navigation devices, every time I relied on an instruction I would sort of counter check it with my visual sense because I was reluctant to rely on this particular tool that was given to me. But as the time went on and I became more dependent on that tool, now I am less reluctant to rely on that tool and there are certain times that I will rely on the tool, on the Google Maps, more than trying to figure out visually whether the instruction is correct or not.  Remember you may be driving at 100 kms plus an hour and if you are required to check whether the instruction that has been given to you by an electronic device is correct and you have to check it by your own senses, I think, imposing that sort of obligation on a driver may be too much and not to forget that we are now entering into the world where we will be using self-driving vehicles in the near future where you have abandoned all control to the equipment that you are relying on.

I do think that not imposing this duty depends upon the time.  The more accidents we may have in the future, the more issues we may have in the future, the more arguments we hear, the more data we see—the courts may be more willing to consider that a duty is appropriate in the circumstances.  With respect to warning the users, again it is also technology dependent.  In 2011 there may not have been sufficient technology whereby Google map may be able to warn you of all traffic hazards but in 2020 or in the coming years the technology may be advanced to a level where it is possible to issue those warnings.  Remember, that in this case the issue was not that the person got her car / vehicle into a pothole that the Google map could not warn her—it was the wrong instruction given to her.  She should not have been sent to a highway which was a busy highway.

I think it’s a different kind of scenario but again it depends upon scenarios and again when you apply this in the virtual world now, the same arguments can apply.  When you use the virtual world one of the features of virtual world, one of the attractions of virtual world, is that they want you to be immersed in the virtual world.  A good virtual world will make you forget the real world. It will make you be detached of the real world. If the purpose of the virtual world is to make you detached from your surroundings and detached from your real world and if there is an injury that may be caused to you from the real world then: Why couldn’t there be a liability? Why couldn’t there be a duty of care? Why couldn’t there be a duty to warn? – on the virtual world provider.

Those are the kind of discussions and you may disagree with my points but those are the kind of discussions that will take place in the coming years in the courts.  It will be interesting to watch whether the court imposes a duty of care or not.

As I said, duty of care is sort of the biggest hurdle in this case and once that duty of care is shown / is found, then it will be relatively easier to find potential liability.  In the next lecture we will go through other elements of negligence and see whether in our discussion, in this analysis, we can find any duty of care against the providers of the virtual world and the people who are using that virtual world to commit some virtual acts / virtual wrongdoing.

Thank-you for watching and stay tuned we will be back with the next lecture shortly.