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Are victims of accidents on their way to becoming cyborgs? This may be the case with the emergence of the wearable technology trend and its potential application to personal injury law by recording vital biometric data that can be used to objectively substantiate and support injury claims.

With interest, we have kept up to date on this growing trend. Several Australian blogs we have reviewed mentioned that precedent has yet to be established over issues such as privacy rights. But in the great country of Canada, they have already emerged as leaders of wearable technologyand have also started to address some of the legal implications of this new trend.

As our reliance on technology to improve our lives continues to grow, there are two questions that come to mind:

  • 1) When is Skynet going to be active?
  • 2) What are the legal implications that arise from this trend?

In response to the first question, perhaps Terminator Genisys can answer that enquiry (and hopefully soon). But until then, we shall try and address the second question, which we are sure is just as important.

Why Is Wearable Technology Useful for Injury Claims?

Before we assess usefulness, we must first be informed of what some of the potential wearable technologies are out there relating to personal injury:

OmSignal is a business based in Montreal that has actually created clothing that can track heart rhythm, heart rate, oxygen levels, steps taken, and even includes external data such as weather and temperature. The company hopes to create a niche of customers who do not want the inconvenience of having tech strapped to their wrists, ankles or other parts of the body.

Other emerging companies in Montreal that focus on wearable tech clothing include Hexoskinand Heddoko (Heddoko actually makes clothing for 3D motion capture so people can learn more about their specific movements relating to their sport.)

Microsoft is developing a smart watch that can record and track continuous heart rate and have even been allowed a patent to develop a wearable Electromyographs (EMG) device.

ActiveEdge are accessories that harness electromagnetic fields to improve R.E.M. sleep, as well as reduce inflammation and improve range of motion.

Google Glass is being used by American injury law firm, Fennamore Craig Attorneys, to allow a double amputee to chronicle his life experience post-accident through the technology.

InteraXon, a company based in Toronto has even developed a product called Muse to detect electroencephalogram (EEG), also known as brainwave activity, and convert it into visual and audio feedback on a smartphone or computer.

As you can see from these examples, these innovations can provide invaluable data that can substantiate a personal injury claim with objective evidence to demonstrate a claimant’s physical capabilities and limitations post-accident. In the case of ActiveEdge, it also brings along the prospect of alternative treatments for claimants to address their symptoms.

Potential Problems

Despite the excitement that is arising from the potential of this technology, there are also a number of issues that may arise:

Misuse of Data

The simplicity of wearable technology also reveals a critical flaw that can undermine its data. A bracelet can just as simply be taken off and worn by someone else to skew the data. Its exposure to external environmental conditions such as impact or weather can also affect the data and its reliability as evidence to support a personal injury claim.

This can also give way to other methods to counter wearable technology data such as an insurance company hiring an investigator to provide video surveillance of the claimant’s activity.

Medical Expenses

Another potential issue is the calculation of damages for medical expenses. In assessing medical expenses for injuries such as chronic pain, a potential argument arises on the sufficiency of wearable technology as assistive devices. For example, chronic pain may require multi-disciplinary care such as a combination of massage therapy, chiropractor treatment or physical rehabilitation. An insurance company may seek to alleviate these potential medical costs by instead suggesting the provision of wearable technology as an assistive device. Is circumventing traditional medical care in favour of these new innovations a reasonable alternative?

Clearly, there is still much more development that is required before these devices can be cleared by federal health regulations. Yet until then, the lingering possibility of a claimant’s medical expenses potentially reduced to $59.99 is both an interesting and slightly frightening concept.

Privacy

Finally, the issue of privacy and access to an individual’s biometric data is another concern. With wearable technology arising as an objective proof of a claimant’s injuries, it is not surprising that insurance companies will want to have disclosure to this data. But how far is too far?

In Australia, the use of wearable technology has not been addressed in personal injury claims. However with reference to Canadian case law, we can make a prediction of how biometric data may be similarly applied as evidence to a personal injury claim.

In Laushway v Messervey (2014) NSCA 7, Peter Laushway was a self-employed businessman who operated on commission by selling products online. He argued that his motor vehicle accident prevented him from sitting in front of his computer to work for prolonged periods of time to gain an income. His motor vehicle insurance company requested the metadata on his computer arguing that it was relevant to substantiate his claims. Mr. Laushway appealed, arguing that it was a breach of his reasonable expectation of privacy.

The Nova Scotia Court of Appeal in Canada held that metadata showing a plaintiff’s use of a computer could be disclosed to the defendant. However, the metadata was restricted to information that only showed factors such as duration of the time spent on the computer. It did not give the defendants access to more personal information such as his internet websites he visited, the emails he sent to his family, or the videos he watched on his laptop.

What Does this Mean?

The potential of misusing data to skew in favour of a claimant’s argument is definitely a possibility with wearable technology. Yet, this in itself is not sufficient to defeat its practicability as objective evidence. Insurance companies still have a range of counter-measures such as video surveillance made available to them to contest this data.

The innovation of wearable technology also has the potentially to drastically reduce medical costs for treatment, yet how reliable it is compared to traditional medical treatment is still yet to be determined.

Biometric data may be requested by the defendants as long as the data being sought is accurate, reliable and related to the claimant’s statements about their overall health. However, it is not automatically a golden ticket for a defendant such as an insurance company to start probing around the private life of the claimant.

At the end of the day, the best solution for your personal injury claim is to make sure that you have a good personal injury lawyer.

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