The New Frontier- The Devil is in the Data

It is nearly 11 years since I represented two motorists charged with dangerous driving at the Crown Court in Oxford. It was alleged that they were racing, and as a result one lost control of their vehicle, colliding with a vehicle coming the other way. The Defendants were fortunate that one of the vehicles had been heavily modified and had an advanced on-board computer which gave detailed and accurate readings of, inter alia, speed, acceleration and the gears/throttle used. Such data was able to undermine the evidence of the Police Sergent eye witness and secure their acquittal. As I left Oxford on the journey north, I pondered whether this type of evidence would become the new frontier in road traffic cases both civil and criminal.

The lack of any real progress in the intervening decade means we have been slow to arrive at that frontier. Recent cases however show that technology and data is finally being used to its maximum effect to undermine allegations and claims, not least those of a fraudulent nature.

Wise v Hegarty and Alpha Insurance (Middlesbrough County Court, 9 July 2019)

The recent case of Wise v Hegarty and Alpha Insurance (Unreported), showed the importance of telematics evidence in securing a finding of fundamental dishonesty. This was a claim arising from an alleged road traffic accident in 2016 in which it was alleged that the Defendant’s vehicle collided with the Claimant’s vehicle whilst overtaking. Both the Claimant and Defendant supported the happening of a collision but disputed the cause of it. Upon investigating the case, the Defendant’s insurers interrogated the telematics device fitted to the Defendant’s vehicle, which revealed inconsistencies in the location of the vehicle at the time of the alleged accident. Further investigations revealed social media connections between the Claimant and Defendant. Consequently the insurer applied to be added as the Second Defendant.

Non- attendance of the Claimant

The case came for trial in Middlesbrough County Court before HHJ Gargan. The Claimant did not attend, no doubt perturbed by the Second Defendant’s pleading of fundamental dishonesty in their Defence. Rather than dismiss the claim, the judge allowed the case to proceed in the absence of the Claimant to consider the issue of fundamental dishonesty. The Court considered the case of Alpha Insurance A/S v Roache [2018] 4 W.L.R 92 in which allegations of fundamental dishonesty were still adjudicated upon despite the Claimant discontinuing their case. HHJ Gargan concluded that such allegations could likewise be adjudicated upon where a Claimant failed to attend the trial. Consideration was given to CPR 44 PD12.4 in this regard.

Telematics evidence

In the trial that followed, the Court heard evidence from a telematics technician, called by the Second Defendant, who had interrogated the data from a box that had been fitted by the Second Defendant to the First Defendant’s vehicle. The box in question was capable of providing information from any specific date and time, as to where the vehicle was going, where it was parked, the speed at which it was travelling and whether any G-forces had been applied to it consistent with an untoward incident. The telematics technician was able to confirm that the First Defendant’s vehicle was parked up at the time of the alleged accident some 2.7 miles away from the alleged accident location. The location of the vehicle was established by 15-19 satellite recordings; only 4 satellite readings were required to give a firm fix of a vehicle location.

The telematics evidence was examined to establish whether an accident could have occurred at another time on the day of the alleged accident or on a day either side. The data was able to show that no untoward incident occurred consistent with the accident and damage reported by the Claimant. The box in question had an accelerometer which measured the extent to which a vehicle accelerated or stopped and the G-forces applied to it. Both the Claimant and First Defendant had been given the opportunity to file written evidence to rebut the telematics evidence and the First Defendant was given the opportunity to give oral evidence at trial to rebut it. No such evidence was forthcoming from either party. The unchallenged telematics data was deemed sufficient to allow the Judge to conclude that the accident could not have happened in the way suggested by either the Claimant or First Defendant.

Social Media

In addition to the telematics evidence, the more familiar evidence from social media provided additional support to the Second Defendant’s assertions that the claim was fundamentally dishonest. There were multiple links between the Claimant and her passengers and the First Defendant on Facebook and other social media. Whilst there were no direct links, there were sufficient secondary links, through mutual friends, to add weight to the suggestion from the Second Defendant, that there had been a fraudulent conspiracy.

Finding of Fundamental Dishonesty

Having considered the telematics evidence, and concluded that the alleged accident simply did not take place, the Judge had no hesitation in finding that the claim was fundamentally dishonest. He concluded that “It is difficult to think of something which is more fundamental to the claim than there having been a collision between the two relevant vehicles at approximately the time and date alleged”. In circumstances where both the Claimant and First Defendant supported the happening of an accident that did not occur, both parties were found to be fundamentally dishonest.

As the social media evidence did not provide any direct links, this evidence was not the strongest. This was a point noted by the Judge, who acknowledged that people with significant numbers of contacts on social media are likely to have such links simply by having gone to the same school. In these circumstances, the telematics data was the clearest evidence pointing to fundamental dishonesty and without it, in my view, such a finding would have been unlikely.

The new frontier?

As the above case illustrates, telematics data can be extremely useful for insurers in defeating claims for injury and loss as a result of road traffic accidents. One can envisage such data being deployed in low speed impact cases to establish with some degree of accuracy the likely speed at the point of impact and the likely G-forces involved. Even in cases where fraud or fundamental dishonesty is not evident, the data in such devices could assist in establishing the speed of a vehicle prior to an accident or the manner of driving of a party in the period leading up to a collision. Such data would be helpful in rebutting allegations that a Defendant was speeding or driving erratically so as to cause a collision.

Most, if not all, car manufacturers have increased their use of computers within vehicles. Significant data is collected by a vehicle on every journey. Such data may well be of assistance to Defendants (and Claimants) in proving and disproving allegations. This is a largely untapped source of evidence that could in future assist parties in litigation. One issue that will have to be navigated is who owns and/or has access to such data, as most of it is only accessible to the manufacturer or garage servicing the vehicle.

In addition to the onboard data on a vehicle, there has been an exponential increase in on-board data boxes installed in vehicles by insurers as part of telematic insurance policies. Between 2016 and 2019 the number of telematic policies on the market more than doubled according to Defaqto. The original target market (younger drivers) has now extended to all drivers who wish to reduce their premiums (particularly older or low mileage drivers). Another significant change in the market is that not all policies now require a box to be fitted at all by the insurer. Some policies now allow for the policy holder to self install a plug and drive device, and other policies use a mobile phone app to track driving habits and collect data.

The increase in these telematic policies and the various ways in which data is collected will result in a potential treasure trove of data and subsequent evidence for insurers to deploy to defend claims arising from road traffic accidents or, as in the case of Wise, show that they did not occur at all. Whilst it has taken a little longer than anticipated, the new frontier that I imagined on the journey back from Oxford in 2009, may just be starting to materialise.

Jonathan lally