With "fit as the new skinny" and apps for documenting
every aspect of our lives, it is no surprise that personal fitness
devices have become a booming industry for tech developers.
Affectionately referred to as "wearables," these bands
and mobile apps purport to help individuals regain control of their
fitness and ultimately their health. Most of these devices operate
by tracking an individual's steps, heart rate, and/or calorie
intake, and consolidating this data into one manageable system.
Although these proposed benefits are well known, personal tracking
may not be the only use for these devices.
The Criminal bar has seen a surge of smart technology being
integrated into the court room. Primarily used as supporting
evidence, the data from smart devices is now commonly relied upon
to support or refute testimony, pinpoint the location of suspects,
or even support claims of premeditation. Now, after witnessing
these developments, it appears that Personal Injury cases are
Whispers of this alternative use for physical fitness devices
started to emerge when counsel for a Plaintiff revealed they would
be using data collected from their client's wearable to
demonstrate how her physical capacity had changed. While one would
assume the comparison should have been conducted against the
client's own fitness history, counsel in this case was limited
to statistics for those of the same demographic and profession.
This is because, before the time of her accident, wearables were
not widely available.
These circumstances demonstrate possible approaches to the use
of this technology in future litigation. Given the prominence of
these devices, comparisons against the Plaintiff's own
pre-accident data will likely become quite common. However, the
application of these technologies is broadening quickly, and their
impact on litigation will not be limited to only those who owned
fitness devices prior to their accident.
Even those who do not think they specifically own a
"wearable" might be surprised by the technology that
tracks their movements. At a recent Questioning in our own office,
defence counsel asked about the health and activity data on a
client's iPhone. Upon further investigation, a number of us
within our own office discovered our iPhones had been tracking data
and recording it in the form of steps, flights of stairs climbed,
and walking/running distances, even though none of recalled setting
up that feature.
There are still significant evidentiary problems with this data.
As anyone who has knowingly used these devices, the accuracy of
wearables is limited and can, in fact, be manipulated by something
as simple as switching the band to your dominant hand. Similarly,
with little to no identification requirements, there is no
guarantee the data is actually being generated by the Plaintiff,
and hasn't, at any point in time, been worn by someone else (or
for that matter, that the Plaintiff has even consistently worn
Furthermore, the data emerging from these devices does not come
pre-analysed and ready for submission at trial. Expert assistance
is still necessary to provide context to the results, and to turn
the data into something thing useful to inform the court.
The risks and benefits of these devices are complex, and in
Personal Injury litigation, these can cut both ways. Although the
results can sometimes be used to support a Plaintiff's claim,
they can also be used by the Defence to refute it, in the same way
traditional surveillance has often been used in the past. Although
poised to be a potentially helpful tool for clients with an
established pre-accident history of fitness tracking, and a marked
post-accident change, there are some controversial features of
these devices that need to be addressed before we can fully assess
the probative value of their use.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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