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Black Boxes: an Untapped Source of Evidence for MVA Litigation

By: David Himelfarb

Black Boxes

Unbeknown to many drivers, a significant proportion of today’s vehicles are equipped with “black boxes” or event data recorders (EDRs), similar to those found in airplanes. In fact, the National Highway Traffic Safety Administration, is considering making black boxes a requirement for all vehicles in the United States starting in June 2011. EDRs are designed to record information in the moments prior to a motor vehicle accident, and other circumstances. Engine problems, speed, dramatic shifts in wheel rotation, seatbelt use, airbag deployment, force of collision, changes in velocity and acceleration, firing times of seatbelt pre-tensioners, accelerator pedal angle, and level of brake application are just some of the variables that may be recorded. The information, in personal injury law, will undoubtedly provide vital clues to understanding how an accident unfolded as well as its cause.

The courts’ treatment of EDR evidence was an influential factor in R. v. Gauthier, [2004] R.J.Q. 743, a Quebec case, where the defendant, Eric Gauthier, was charged with criminal negligence causing death and convicted of dangerous driving. There were no witnesses present. Gauthier informed the police that the plaintiff’s vehicle was speeding and ran a red light. However, upon analysis of the black box data, it was determined that Gauthier was driving at speeds of 154, 157, 152, and 131 km/hour, approximately three times the speed limit, in the moments preceding the accident. Moreover, the data revealed that the accelerator was at the 100% throttle position four to five seconds prior to crashing into the defendant’s vehicle. Most notably, the defendant’s motion to exclude the evidence based on Article 8 of the Canadian Charter of Rights and Freedoms, which limits unreasonable search and seizure, was dismissed.

Since R. v. Gauthier, the courts have continued to admit EDR data into the evidential record. For example, in R. v. Kasprick, 2005 SKQB 140, data were used in the determination of whether the driver of a truck fell asleep behind the wheel, leading to a tragic accident that killed three and seriously injured two people. In R. v. Coombs, 2006 ONCJ 441, investigators turned to the black box to determine the speed of a vehicle involved in a road rage incident with another driver. In R. v. Cote, (2007) 300 Sask. R. 194 and R. v. Delorey, 2010 NSSC 161, the speed of a vehicle driven by an intoxicated driver was determined by EDR data. Finally, in Burdette (Guardian ad litem of) v. Mohammed, 2010 BCSC 310, defence experts used the black box data to prove that the defendant had reasonably reduced the speed of his vehicle before the collision.

As courts turn to EDR data to unravel the cause of an accident, a question arises as to their accuracy and reliability. A recent report presented at the 21st Canadian Multidisciplinary Road Safety Conference, Halifax, Nova Scotia, (May, 2011) examined the crash data that are available from Chrysler vehicles and explored their accuracy compared to other recording measures. The study focused on data obtained from a series of staged collisions with EDR equipped vehicles and compared the data downloaded from these devices to equivalent information captured by laboratory instrumentation. The tests utilized full-frontal crashes conducted on a variety of vehicles. The report concluded that the pre-crash speeds recorded by EDRs differed by only 1 to 2 km/hour when compared to the laboratory instruments, thus providing users of the data a certain level of confidence in their accuracy.

As automotive black boxes find their way into more and more vehicles, and as courts have allowed their data into the evidential record, an increasingly accurate reconstruction of an accident scene is available to litigants, their counsel, and triers of fact. Not only do EDR data assist in accident reconstruction, but they also allow oral testimony to corroborated. Injured parties will continue to have access to an unbiased and accurate source of information to help identify the cause of the accident. If you would like to determine whether your vehicle is equipped with a black box you can follow this link to an updated list maintained by Bosch.

For assistance with a personal injury or insurance claim, please email David at To be contacted immediately call 1-855-446-7765 for a free case evaluation.

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