Activity trackers in personal injury claims

Where they have been fortunate enough to return to some level of training post accident, I have asked if they have recorded their training data on the tracker to form part of disclosure in their case, to provide evidence of their pre and post-accident fitness levels and activities. But how useful are such devices as evidence, and are we going to see them being routinely used and disclosed in personal injury (PI) claims?

The waters are already being tested in this field in Canada in a reported PI lawsuit involving a claimant who was a personal trainer pre accident and is seeking to rely upon the use of an activity tracker device to measure the decline in her activity levels post accident.

Any party seeking to rely upon such evidence will need ?to ensure that it is in accordance with the Civil Procedure Rules overriding objective, in that disclosure of data from such a device is proportionate to the claim being presented. ?The use of such devices may well become more widespread in multi-track-value claims for longer-term serious injuries; however, claimants may struggle to prove it is proportionate for a claim with ?a value lower than £25,000, unless the claim has a particular complexity or is directly linked to the claimant’s employment or loss of earnings claim.

I predict that we will see an increase in requests for medical experts to review activity-tracking data as part of medical records instructions by claimant and defendants alike. Again, however, I foresee that a party will need to be able to satisfy the proportionality test to justify the additional expense of the expert trawling through data records.

As with any piece of evidence, it will be open to the judge as to how much weight they choose to attach to such evidence. Every case is fact sensitive and there is still an element of subjectivity. There are also some limitations with the reliability of the data, but I do think generally the evidence can be persuasive in certain circumstances. There is no substitute to gathering good solid evidence to support a claim and the activity tracker may well become a useful part of the claimant’s toolkit.

Of course, the use of these devices in a PI case could be a double-edged sword. As part of the surveillance checks in a PI claim, savvy defendant insurers will undoubtedly be trawling through Strava and a sporty claimant’s other social media posting activities. A claimant needs to be aware that their duty of disclosure will extend to tracking information that may adversely affect their case.

The usefulness of wearable devices may also extend to rehabilitation. We could see an increase in people purchasing one and claiming it as an item of special damage to actively engage in rehabilitation and track their progress. SJ?

Melanie Burden is a partner at Colemans-ctts @Colemansctts www.colemans-ctts.co.uk