In the last couple of decades, wearable technology has transitioned decisively from science fiction into reality as Canadians of all ages embrace smartwatches, fitness trackers and phone apps that can measure heart rate, step count, physical location and even sleep quality — among other outputs.
And the data these devices churn out are beginning to make their presence felt in another arena: the courtroom.
As a personal injury lawyer in Oakville, it’s exciting to see a new form of evidence emerge with the potential to boost a client’s claim thanks to the insights it can provide into the injury victim’s circumstances, both at the time of the accident and during their recovery.
Digital submissions
Caselaw on the subject remains limited, but in a 2020 case from B.C., a woman who sustained injuries in three separate motor vehicle accidents used her pre- and post-incident Fitbit data to support her successful claim for non-pecuniary damages for pain and suffering and loss of enjoyment of life, as a result of the deterioration in her physical condition.
According to the decision, the woman’s Fitbit data suggested she regularly walked between 20,000 and 30,000 steps per day before the first in her series of accidents. By the time of the trial, that number had fallen below 1,000 steps on a typical day.
In another more recent case from the same province (B.C. seems to be a trailblazer on the wearable tech front), the plaintiff submitted evidence from his Strava app to show that he was travelling below the posted speed limit on his bicycle when he was struck by the defendant’s car, which had turned right into a driveway across the bike lane.
However, the same decision also shows that wearable technology can be a double-edged sword in personal injury matters, with both sides making use of the data in their arguments.
Promise and potential pitfalls
For example, the defendant in the case argued that the speeds captured earlier in the rider’s trip — a top rate of more than 76 km per hour, well in excess of the limit — were an indication of the rider’s “recklessness and competitiveness” as it attempted to pin the blame on him for the crash.
Ultimately, the judge apportioned liability 85-15 in favour of the cyclist, reasoning that the plaintiff bore at least some responsibility because he had not exercised more caution as he passed slower-moving cars on the right.
The defendants also pointed to post-accident data from the plaintiff’s cycling apps to highlight his continued physical abilities: the evidence indicated that he was still riding between 10,000 and 12,000 km annually in the years after his accident and retained the capacity to ride up to 150 km at a time.
Barriers limit use in court
Data from wearables has considerable potential for personal injury claimants, but for now, it remains largely hypothetical. A few of the barriers standing in its way include:
- Limited adoption: Despite significant user growth in recent years, wearable technology remains at a relatively early stage of development, and it’s probably still a minority of Canadians who regularly track their activities digitally. Still, that could change quickly. It wasn’t so long ago that social media evidence was a novelty in personal injury litigation, but now it is common in legal filings.
- Doubts over accuracy: Having one’s digital data accepted in court is more complicated than simply turning over one’s Fitbit or Strava stats. A judge will need to be satisfied that the information relates to your activity — and yours alone — and can be relied upon for its accuracy. In addition, you can be sure that your insurer will be working hard to poke any holes they can in the way the data was recorded, collected and stored.
- Privacy issues: Wearable technology is capable of collecting vast amounts of personal information, but not all of it will be relevant to any personal injury claim you may have. The Office of the Privacy Commissioner of Canada has even produced tips for users seeking to protect their personal information.
As wearable technology continues to evolve, we’ll be watching developments closely.
If you think you have a personal injury claim where digital data could help your case, feel free to contact me or another member of the team at Edwards Pollard to speak with a personal injury lawyer in Oakville.
