Event Data Recorders
25-Feb-2002

As a result of a tragic motor vehicle accident which occurred recently in Nova Scotia, the media have published several articles referring to "event data recorders" (EDRs) which are present in some of today’s motor vehicles.

EDRs are becoming more common and they can, in some circumstances, provide valuable information as to events leading up to a motor vehicle accident. It is thus essential that people who deal with motor vehicle accident claims and litigation understand what EDRs are, where and when to look for them, what data they may offer, and how to access and preserve this data so that it can be used in adjusting claims and in litigation.

What is an Event Data Recorder?

EDRs were developed by the automotive industry as part of the air bag supplementary restraint system. Early EDRs monitored vehicle speed and force of impact to determine whether air bags were deployed. As technology evolved, EDRs were designed to read and record more information.

Currently, there are motor vehicles equipped with EDRs that record speed, whether the vehicle is accelerating or braking, whether the seat belt is buckled, and whether the air bag is deployed. Every five seconds this information is over-written unless there is a collision that triggers the air bag. If such a collision occurs, the information on the EDR is locked permanently into its memory and can be retrieved for analysis and investigation. An EDR can thus give an accident investigator key information about the vehicle in the five seconds prior to impact.

Benefits and Obstacles to Using Information from EDRs

The benefits of such precise and detailed information in claims and litigation are obvious. There are, however, some things every accident investigator and claims examiner should know about EDRs.

Lack of Regulation

Currently, there is no legislation regulating the installation or design of EDRs. As a result, an EDR will not always be available; and if it is available, it will not necessarily contain the same data as another vehicle’s EDR. We do know that major manufacturers such as General Motors are installing EDRs, and it is safe to assume that EDRs will continue to evolve to store more and more types of data.

Quality of Information

At present, a typical EDR will only provide useful information if the accident was one which caused the air bag to deploy. An EDR will thus not be useful in a minor collision. In addition, the typical EDR will only provide data covering the five seconds prior to air bag deployment. In cases where there was a delayed deployment, or a second impact, an EDR will not necessarily provide the most relevant information.

Retrieval of Information

Once you have determined that a subject vehicle has an EDR, how does it tell its story? Currently, EDR data can be downloaded and analysed only by the vehicle manufacturer. In some cases, police investigators might take the EDR into their own possession and enlist the manufacturer’s assistance. In other cases, it will be up to the accident investigator and claims examiner to follow up on this. If the matter proceeds to litigation, it may be possible to force a manufacturer to disclose the EDR’s information, particularly in Nova Scotia, Prince Edward Island and other provinces with procedures to compel discovery and disclosure by non-parties.

Admissibility of EDR information

Once the EDR data is available, it can be added to other information obtained by the investigator and examiner to form part of the basis for making a decision on the claim. If the matter proceeds to litigation, the question becomes whether the EDR data will be admissible and reliable at trial.

Currently, there are no reported decisions in Canada in which EDR data has been used in litigation. Data retrieved from similar devices, such as an airplane’s "black box" and like devices installed on trains have been accepted as evidence in both Canadian and US courts.

There is only one reported decision in the United States in which EDR-type data was accepted by the Court. In Ruby Harris v. General Motors Corporation, 2000 FED App. 0039P (6th Cir.) Harris appealed a summary judgment to GM arising from an accident in which the deployment of Harris’ air bag caused her injury. The issue in that was the timing of the air bag deployment. GM presented an Affidavit of one of its engineers in which he referred to downloaded data from a device onboard Harris’ vehicle known as a "diagnostic energy reserve module" or DERM. The engineer likened the DERM to an airplane’s black box. The DERM monitored the air bag system for malfunctions and warned the operator by controlling the air bag warning light on the instrument panel. The GM engineer stated that the DERM data suggested that the air bag deployed during the plaintiff’s accident. The court accepted this evidence, but held it was not conclusive proof of the timing of the air bag deployment.

This decision makes it clear that while it is helpful and worthwhile to obtain EDR data after a motor vehicle accident, that data will not necessarily be conclusive proof of matters such as vehicle speed prior to impact, and thus it will still be necessary to conduct more traditional post-accident investigations such as reconstructions and impact analyses, with EDR data (when available) a very helpful and effective way of corroborating expert conclusions.

While no Canadian court has yet considered EDR evidence we anticipate it would have to be introduced through the testimony of an expert or experts qualified in retrieving, decoding and interpreting EDR data, on the basis of a firm foundation of factual evidence on matters such as when the airbag deployed.

Conclusion and Recommendations

EDRs are certain to become more common and more informative. Therefore, accident investigators and claims examiners should make sure they ask these questions in every motor vehicle accident claim:

1. Did the accident cause an air bag to deploy in any of the involved vehicles?
2. If so, was that vehicle equipped with an EDR?
3. Is it possible to determine at what point in the collision the air bag deployed?
4. What sort of data is collected by the type of EDR in the subject vehicle?
5. Are the police attempting to access the EDR’s data and, if so, are they willing to disclose it to the interested parties and their insurers?
6. If not, can the vehicle manufacturer be enlisted to retrieve the EDR and access its data?

We expect that EDR technology will continue to move forward at a rapid rate, and it is only a matter of time before Canadian and American courts are asked to consider this sort of evidence in motor vehicle accident litigation. Accident investigators and claims examiners must therefore be sure to find out whether this sort of data might be available in any accident involving air bag - equipped vehicles.

We encourage you to contact the lawyers shown below with any questions about the contents of this Client Update.