As activity trackers such as the Fitbit and Jawbone become increasingly popular, and with the imminent arrival of Apple’s Watch, solicitor James Pritchard examines their potential impact on personal injury cases.

A recent personal injury case in Canada saw lawyers use a client’s activity tracker for the first time to demonstrate the extent of her injuries after an accident.

The woman, a former personal trainer, wears a tracker to measure her daily activity. Her lawyers compared the data harvested to that of healthy people of the same age, to demonstrate that her physical capabilities have been diminished.

Canada has a similar legal system to ours, so it’s very possible that cases like this will begin to appear in the UK soon.

Some commentators have suggested 2015 will be the year wearable technology will become mainstream, especially with the much-anticipated launch of the Apple Watch. There is a real likelihood, therefore, that wearable tech will feature more and more in personal injury cases, and that parties will want access to the information they can offer.

At present, Personal Injury lawyers rely on medical experts to assess the extent of a Claimant’s injuries. The expert may examine the client and review their medical records – a process that may only take 30 minutes or so. With very little solid evidence, experts are expected to determine how much an accident has affected a claimant’s life. Activity trackers record a wide range of information about the wearer, including number of steps taken and heart-rate and location and can be used over a long period.

If a claimant happened to wear such a device before their accident, this information could be compared to their previous activity levels to prove the precise day-to-day impact. In fact, as evidenced in the Canadian case, an activity tracker can be used even if the claimant didn’t wear such a device beforehand, as their activity levels could still be compared to those of other individuals of a similar age.

Significantly, such a range of evidence could help a genuine claimant demonstrate more fully the extent of their injuries. It may also help to “weed out” those who are perhaps not quite as injured as they want us to believe.

However, I believe there is potential for real difficulties to arise if defendants begin to request access to the raw data and use it to challenge the medical experts or claimants. The data would be private, but not legally privileged.

There is also the possibility of defendant insurers and solicitors attempting to force claimants to wear such devices for a period of time to record their activity levels – tantamount, perhaps, to a form of “tagging”.

What seems like a shiny and fun piece of new technology could open up a whole can of legal worms!

I have no doubt that some older solicitors may think I’m getting carried away – but already defendants are increasingly relying on evidence from social media to attempt to “incriminate” claimants. If wearable tech takes off I would not be surprised to see regular calls for data collected by it to be relied upon as evidence in personal injury cases within the next decade or sooner.