Slip and fall injuries, medical malpractice, expert systems, and improving justice for all. These are just some of the issues that newly minted PhD grad Lachlan Caunt researches. Fresh from leading a project that uses algorithmic decision-making and machine learning and from being a visiting researcher at Oxford, he joins Queen’s Law remotely from Vancouver as the Tim Bates Postdoctoral Fellow in Insurance Law. Throughout the year, he’ll be sharing his expertise with students and collaborating with faculty. 

“The most interesting finding from my AI project is that damages for negligence (an injury caused unintentionally) have gone up by a double-digit percentage over the last 20 years for no obvious reason,” he says. “It appears that judges are becoming increasingly sympathetic to plaintiff arguments, future costs, and other things, so the costs to litigate are slowly trickling up.”

Earlier this year as he was completing his doctoral degree at the University of British Columbia, he and his team used machine learning to read every negligence case in B.C. from the last 20 years. From that, they extracted the amount of damages awarded and the type of contributory negligence in each case. 

One example of contributory negligence is when a person slips and falls in a grocery store, where the sprayer wetting the vegetables sprays water on the floor. “If you slipped and fell there and injured your back, that would be negligence because the grocery store didn’t sufficiently protect passers-by from the risk of slip and fall,” he explains. “Another example would be if a surgeon operates on you, doesn’t use appropriate care, and causes an injury.”

Caunt is working with Professor Erik Knutsen to publish a substantive article flowing from that project, as well as another major paper. The second one is based on Caunt’s dissertation research on how insurance affects the laws of negligence. “Negligence law is assumed to be its own kingdom, but the reality is all negligence law rules are strongly affected by how the law of insurance operates,” he says. 

Based on data he gathered by interviewing 50 lawyers and senior insurance people across Canada, he’s arguing that one can’t look at negligence without looking at insurance. “I’m showing for the first time in Canada that negligence and insurance strongly influence each other, and just looking at one half of the equation is to be missing most of the puzzle.” 

In his newly developed list of six new ways in which insurance law affects the law of negligence, Caunt finds there are a lot of suppositions about how the law of negligence works that just aren’t true in practice. “For example, when you sue somebody, it’s assumed the person you’re suing will pay you the money. The reality is in every case it’s insurance that actually pays the money,” he explains. “Nobody ever sues anybody who is uninsured. In the case of somebody who is under-insured, say I had a slip and fall and did $5 million of damage to my back, if the grocery store only has $1 million of insurance coverage, I’m only going to get $1 million.” 

Medical negligence and medical malpractice are the subject of another follow-up article Caunt is working on. “Medical negligence is its own field because there is one insurer that acts to protect physicians, the Canadian Medical Protective Association (CMPA),” he says. “The CMPA is extremely clever, well-resourced, and good at what they do. It’s really hard to point out evidence that a physician did something wrong because all the specialized expertise lies with physicians rather than with the plaintiff’s council. In 2018, there were only eight successful cases in all of Canada where somebody tried to sue a physician and was successful.”

Promoting access to justice is something else Caunt is involved with as a project director with the B.C.-based Justice Lab. “All access to justice projects so far have focused on courts and lawyers, not the users,” he says. “The reality is the vast majority of people who need to access justice never speak to a lawyer and never formally engage with the justice process.” 

After gathering, crunching, and analyzing data from five million British Columbians to identify problem areas (“for access to justice, most of the problems are not legal, they’re social”), teams of interns will develop novel solutions. “A classic example would be tradespeople renovating a house,” he explains. “They typically have an oral discussion with the homeowner and say, ‘I’ll fix your wall for $5,000.’ If something goes wrong, then there’s no contract by which they can work out whether more money should be paid or whether the tradesperson was negligent. With a simple app, they could have contract in two minutes. If there are problems, the tradesperson or the homeowner could take that contract to court.” 

Caunt is also bringing his data analytics project experience to the Conflict Analytics Labs, providing structural advice and supervising the final phase of the Personal Injury Analytics Project. In that project, users answer questions about their personal injury case and then the tool generates the three most similar Ontario legal cases and how much money was obtained. “A common insurance strategy is to say, ‘You’ve got injuries and claimed $500,000. We’re going to offer you $100,000 in compensation.’ If there’s no case law to back up your viewpoint, then often you have to accept the $100,000,” he explains. “This tool provides strong evidence as you can cite those three cases in mediation or in discussion with your insurer and say, ‘I’ve got evidence that you’re low-balling me. The amount I deserve is actually $500,000.’” Also with CAL, he’s working with researchers to develop the Malpractice Project. 

In the winter term, students will be learning Insurance Law from the award-winning teacher Caunt.
“I’m really excited to be teaching the class and having my first online teaching experience,” he says. “I’ve put into place a lot of teaching innovations that should make online teaching pretty exciting and enjoyable.”

Supporting Caunt’s work with Queen’s Law are a SSHRC grant and a post-doctoral fellowship funded by Tim Bates, Law’74 (Arts’71), and Janey Bates (Arts’71, Ed’72). 

By Lisa Graham