Judges and practitioners alike are routinely confronted with substantial claims for care and assistance following an accident, with claimants alleging that their injuries have restricted their ability to carry out various domestic chores. Further, awards of general damages include considerations of loss of amenity, for example where a claimant complains that they are unable to exercise or enjoy their hobbies to the same extent as they once did.
For the more sceptical among us, it would often seem that “pre-injury” claimants must have been some of the most fitness conscious and house-proud individuals in the country. Schedules of Loss often allege that many hours were once spent gardening, cleaning and exercising; activities which are now greatly hindered or rendered impossible due to post-accident symptoms. Traditionally, judges assess these claims of post-accident restrictions on the basis of the claimant’s medical report and their oral evidence.
However, Canadian lawyers have adopted a novel approach to bolstering the credibility of such claims. According to the Independent, a law firm in Calgary has provided their client with a wearable fitness tracker or bracelet, known as a “Fitbit”, in an attempt to demonstrate that her post-accident activity levels are significantly below the norm for individuals of a similar age and occupation. The claimant will wear the Fitbit for several months in order to track her activity levels, before the data is compared to average activity statistics for the general population. Given that the claimant in question worked as a personal trainer prior her accident, it is likely that the court will accept that her previous lifestyle was an active one. It is hoped that the data collected will “back up” the claimant’s account of her personal injuries leading to a decrease in mobility.
This case raises some interesting questions as to how such data could be used in the future. As noted by Simon Readhead QC in his previous posting, the “gadget generation” are voracious technology consumers. The use of such personal fitness trackers in the general population is becoming more common, as well as many smartphones now coming equipped with “health tracker” applications which automatically monitor and record an individual’s daily activity levels. Could we see claimants in this country attempting to use such data in order to support their claims? And what about defendant lawyers? Could they try and seek disclosure of such information where there are doubts as to a claimant’s credibility? It will be interesting to see how the Canadian court deals with this electronic evidence, and whether a precedent will be set for more widespread use of such technology.
Read the Independant article here - http://www.independent.co.uk/life-style/gadgets-and-tech/news/fitness-tracker-data-submitted-as-evidence-for-first-time-ever-in-personal-injury-lawsuit-9870092.html