May 18, 2016 by John Seyler, President, Integrated Insurance Resources Inc.; and Mike Furyk, student-at-law, Blouin Dunn LLP
If a picture is worth a thousand words, I guess a minute of dash cam video in your favour may be worth a lot more. While we are subjected to more and more passive surveillance in our community, one evolution has turned out to be a great investigative and defence tool for the insurance industry and law enforcement. My clients often refer to the dash cam as a “cash cam” for the money the investment saves them.
For those unfamiliar, a dash cam is a camera system that typically is mounted on the dash of a vehicle, and possibly in the rear, for front and rear view. The camera records while the vehicle is in motion and can also be used when parked.
The technology has flourished in the commercial transportation sector, although is not completely embraced by commercial drivers. The implementation of cameras in the vehicles of the drivers is a record of behaviour and is seen by many operators as a corporate intrusion into their personal workspace. Imagine if your company installed a camera at your desk that would keep a record of your every coming and going. Just as the public have become accustomed to cameras on the street, in your taxi, and at an ATM, drivers will eventually adjust and accept the surveillance.
The ongoing record of a trip in a truck provides a myriad of information both visual and audio. The camera will record activity including the lane position of the subject vehicle as well as those around them. The optical capabilities of the camera work both day and night.
Some of the cameras function in a manner similar to a GPS where speed and location is also recorded. Many of the cameras record the ongoing audio inside the subject vehicle, which can lead to a country music soundtrack or colourful commentary peppered with expletives. Despite these drawbacks, the audio record can provide a valuable perspective to the investigator of the operator’s state of mind.
The first step to using dash cam evidence in an investigation is determining if it exists. I had the recent experience of being at the scene of a fatal accident where the police investigator failed to even recognize or identify the camera on the dash of our insured’s vehicle. In fact, the camera recorded several hours of the comings and goings of emergency and police personnel from its stationary position, despite the scene being closed.
The securement of the video evidence should be preserved by the camera owner or engineering expert and disseminated exclusively by legal counsel to others to ensure privilege is maintained. In less serious accidents, determining liability can be quick and easy. As an adjuster, knowing the truth enables me to make an instant decision to accept liability and expedite a settlement, or prepare for a fight. Prior to the inception of the technology, adjusters relied on the physical evidence and statements of their drivers to reconcile their liability. This could end in a negotiated settlement, or worse, the eventual revelation that our information provided by the insured was inaccurate or simply false.
Dash cam videos have been utilized successfully in traffic cases in various countries around the world, including Canada. In actions involving conflicting testimonies and evidence, a video recording can be a significant factor in the determination of liability, damages and in some cases, fraud. Police vehicles are commonly equipped with dashboard cameras, which may be utilized as evidence in court to obtain convictions.
Vehicles today are also being equipped with a “black box”, which tracks key driving parameters that can be transferred to insurance companies and may be used as evidence in an action for damages. Dash cams are a logical extension that complements the black box; together they provide advanced data and insight into a motor vehicle accident. Dash cams can drastically minimize fraudulent accidents, encourage early settlements and save insurance companies costs relating to litigation and investigation.
Generally, if parties to an action have not disclosed the existence of a dash cam recording, this evidence may ultimately be revealed at examinations for discovery. The existence of dash cam evidence warrants a party’s undertaking to produce the video recording based on relevancy with respect to damages and liability. The video should be reviewed and analyzed by all parties involved to determine the degree of liability, if any, of your insured. If the action proceeds to trial or arbitration, this evidence may be used to sway a jury, judge or arbitrator in favour of your insured. Dash cam evidence in conjunction with an explanation and/or testimony, may bolster the video data creating a very compelling argument at trial or arbitration.
The admissibility of such evidence is based on relevance to a material fact of a case governed by case law and statutes such as the Rules of Civil Procedure, the Dispute Resolution Practice Code and the Evidence Act. Material fact is a fact that is necessary to a determination of the matter, and without which a proper determination cannot be made. In the civil context, what is material is often determined by the pleading of an action as the pleadings set out what is being disputed. Dash cam evidence is relevant if it makes the existence or non-existence of any fact that is material to the determination of a material fact or issue more probable or less probable than it would be without the evidence. To decide whether the dash cam evidence is relevant, ask yourself whether the evidence helps you prove or disprove the facts involved in your claim.
In the transportation industry one of the most common accident types is the improper lane change. Truck drivers in big rigs have to manoeuvre slow, large vehicles with blind spots in front and to the right. Police and opposing drivers often blame truck drivers based on past prejudice. Truck drivers have to overcome the motoring public’s misconception that they are careless.
The cost of dash cameras and the quality of the video has made this technology viable for fleet vehicles as well as personal automobiles The current costs range from $100 to $500 depending on features and quality of recording. The devices can be hard-wired or use an existing power source such as a 12-volt outlet or USB port.
How courts and law enforcement will use this remains to be further determined. With certainty, however, video evidence from dash cameras will become more prevalent in the future and the claims industry has to prepare for the acquisition, storage and sharing of the evidence.