Wearable tech is big news in 2015 for everyone from fashion fans to fitness enthusiasts. The arrival of apps accompanied by wearable devices like Garmins and Fitbugs, as well as the AppleWatch and a noticeable rise in use of activity trackers means that we have more data than ever before on how – and when – we move. In the world of personal injury this has become a key topic, particularly with respect to whether this kind of tech might have an evidential purpose when it comes to a successful personal injury claim. Melanie Burden, who specialises in personal injury, chronic and long-term injuries, looks at whether the tech revolution may be edging into the personal injury world via these clever little devices.
Evidence of both pre and post-accident activity
Evidence is one of the foundation blocks of a personal injury claim, which is why the use of data from a wearable activity tracker – such as Strava, Garmin and AppleWatch – could provide key insight into, not only the level of activity before an injury occurred, but also the level of recovery after such an event. Particularly with respect to a sporty client who may have suffered a serious injury, it’s becoming increasingly more routine to ask about the use of wearable activity tracker devices – specifically, whether they were worn and whether any of the data that they collected was retained and/or shared. The idea that these devices can provide evidence of both pre and post-accident activities and fitness levels could potentially revolutionise the process of evidence gathering in some cases. But is this kind of personal tech something we’re likely to see regularly used and disclosed in personal injury claims and how much use is it really likely to be?
The CPR Overriding Objective will apply to the use of wearable activity trackers as evidence in the same way as it would do for any other piece of evidence – so, the disclosure of data from the device in question will need to be proportionate to the claim that is being put forward. The proportionality element could prove to be problematic where a claim has a value that is less than £25,000 as a claimant might struggle to prove the proportionality of using a device for such a claim – unless it’s an especially complex claim or there is a direct link to employment or loss of earnings claim. However, when it comes to Multi Track value longer-term serious injuries, the use of these kinds of wearable activity trackers could become commonplace.
Proportionality would once again come into play with respect to reviewing the data that these devices provide. The proportionality test would need to be satisfied by a Claimant to justify the extra cost of employing a medical expert to go through the activity tracking data as part of medical records instructions.
The way in which these devices can be used could also extend into post-accident recovery and a whole new market may open up in those who would never have bought an AppleWatch or Fitbug before their accident but do so afterwards. Those who do this could claim the device as an item of Special Damage to positively engage in rehabilitation – it would be used in conjunction with the medical professionals treating a Claimant to track rehabilitation process and to self manage recovery.
There’s a strong argument that this kind of evidence could be very persuasive in the right circumstances but, as always, the weight that is given to the data from a wearable activity tracker as evidence will be down to the discretion of the Judge. Each case will be fact sensitive and of course it’s important to bear in mind that there remains an element of subjectivity. Reliability of the data may also have some limitations and that’s something worth bearing in mind when considering using this kind of data as evidence. However, there’s no doubt that the data from a wearable activity tracker is potentially a strong source of evidence and could well become key for Claimants when it comes to helping to prove a claim.
A double-edged sword?
While the use of this kind of data will shine a light on facts that could be useful for a Claimant, it’s important to remember that it’s not possible to limit the breadth of the exposure that could result from using it as evidence. A Defendant insurance company would no doubt have no problem looking through Claimant data gathered via one of these devices, as well as connected social media posting activities, and these surveillance checks could throw up a wide variety of facts that may not be altogether helpful to the Claimant. The duty of disclosure will extend to tracking information that may have a negative impact on a case, as well as a positive impact, and Claimants must be aware of that before opting to incorporate an activity tracker as evidence.
Are wearables already being used in litigation?
Currently, in Canada, a personal injury lawsuit is under way in which the use of wearable activity tracker data features as evidence. The Claimant was a personal trainer before she suffered an injury and is looking to rely on the data gathered by an activity tracker before the accident took place to demonstrate the drop in her levels of activity since she was injured. As far as we know, there are no cases to test this in the UK yet but it is surely only a matter of time.
By Melanie Burden, Partner at Colemans-ctts (a trading style of Simpson Millar)