Smartwatches and fitness apps now record an extraordinary amount of information about everyday life. Apple Watches, Fitbits, Garmin devices and apps such as Strava can create detailed records of steps, exercise, distance travelled, heart rate, sleep patterns and GPS activity.
For insurers defending personal injury claims, that creates an increasingly important evidential question: when a plaintiff puts their mobility, physical activity or ability to exercise directly in issue, could the data recorded on their wrist become relevant evidence?
At Lacey Solicitors, acting for insurers from our offices in Belfast and Dublin, we increasingly see digital evidence forming part of the wider investigation of personal injury claims. CCTV, social media, dashcam footage, vehicle telematics and surveillance are already familiar tools. Wearable technology may represent the next development.
Why Wearable Data Could Matter to Insurers
Personal injury claims frequently include allegations about changes in a plaintiff’s everyday activities through loss of amenity claims.
A plaintiff may say that an accident has substantially reduced their mobility, prevented them from walking significant distances, stopped them running or cycling, interfered with gym attendance or prevented a return to a sport or hobby.
Traditionally, those assertions are examined through medical evidence, witness evidence, employment records, social media and, in appropriate cases, surveillance.
Wearable technology can potentially add another source of evidence.
If an individual regularly wore a smartwatch before and after an accident, the device might show a measurable reduction in activity following the incident. That evidence could support the plaintiff’s account.
Conversely, recorded walks, runs, cycling sessions or other physical activity may require explanation where they appear inconsistent with an allegation of severe or prolonged physical restriction.
The important point for insurers is that wearable evidence should not be viewed simply as evidence against a plaintiff. It can support either side of the case. Its value lies in providing an objective evidential background against which the pleaded case, medical evidence and plaintiff’s account can be tested.
Strava and Personal Injury Claims
Strava is particularly interesting in claims involving running, walking and cycling.
Depending upon the device used and the individual’s settings, an activity can record distance, duration, pace, speed, route, elevation and sometimes heart-rate information.
There may also be a significant distinction between data held privately within an account and activities which the individual has chosen to make publicly visible.
Strava evidence has already appeared in UK civil litigation and is used regularly within our office to test a Plaintiff’s account.
In the Scottish Court of Session decision of Nigel Dick v Joseph Merrick [2024] CSOH 39, Strava and GPS material was considered in examining the circumstances surrounding a serious cycling collision.
The case is particularly useful because it also demonstrates why insurers should be cautious about treating digital data as infallible. The Court heard evidence about the limitations of GPS positioning and the degree of error which could affect Strava data.
A GPS point on a map is therefore not necessarily conclusive evidence that a person was in an exact position at an exact second. As with CCTV, telematics or engineering evidence, the underlying technology and its limitations have to be understood.
Could an Insurer Obtain Smartwatch Data in Northern Ireland?
Potentially, although relevance and proportionality are critical.
Discovery in Northern Ireland can extend to material in a party’s possession, custody or power which relates to matters in issue.
There is, however, an important procedural qualification in County Court litigation.
Where liability has been admitted, or where proceedings arise from a collision or apprehended collision involving a vehicle, the County Court Rules generally restrict ordinary discovery to documents relating to special damage unless the Court orders otherwise.
That can be important in a road traffic personal injury claim where a Defendant wishes to obtain smartwatch information solely to investigate general damages or an allegation of continuing restriction.
It does not necessarily mean that such evidence could never be obtained. It means that the insurer and its solicitors need to consider the procedural route carefully and be capable of explaining why the particular evidence sought is relevant and necessary.
A request for a claimant’s complete Apple Health history from several years before an accident to the present day is likely to raise obvious objections.
A tightly defined request directed, for example, to activity or step-count information over a specific period where the plaintiff alleges an inability to walk significant distances presents a very different proposition.
What About Discovery in the Republic of Ireland?
Similar questions arise in Irish litigation, although under a different procedural regime.
In High Court proceedings, Order 31 of the Rules of the Superior Courts expressly deals with electronically stored information. A party seeking discovery must identify the categories required and explain why they are necessary for the fair disposal of the proceedings or for saving costs.
The Rules expressly provide that, for discovery purposes, documents include electronically stored information.
In Circuit Court proceedings, Order 32 similarly permits discovery of documents relating to matters in issue, subject to the Court’s assessment of whether the discovery sought is necessary.
For an insurer defending a claim in Dublin or elsewhere in the Republic, the question is therefore unlikely to be simply, “Can smartwatch data be discovered?”
The more useful questions are: What precise data is relevant? What allegation does it test? What period is justified? Does the claimant have possession or power over the information? And is obtaining it proportionate to the issue being investigated?
Those questions should inform the wording of any voluntary discovery request and any subsequent application.
What Can Insurers Learn From US Wearable-Data Cases?
Although US decisions are not binding in either Northern Ireland or the Republic of Ireland, American courts have already had to deal directly with requests for Fitbit information and provide useful illustrations of the competing arguments.
In Bartis v Biomet Inc (2021), a US Federal Court considered Fitbit information in circumstances where the claimant alleged continuing pain and limitations on his mobility.
The Court accepted that activity levels were relevant and ordered production of a portion of the Fitbit information. Significantly, the Defendant did not receive unrestricted access to every category of information generated by the device.
That approach can be contrasted with Spoljaric v Savarese (2020), where the New York Supreme Court rejected a demand for all Fitbit data. The Court considered that the request, on the evidence before it, amounted to an overly broad fishing expedition.
The distinction is important for insurers.
The developing lesson is not that a claimant’s entire digital life becomes discoverable whenever personal injury is alleged. Rather, specific activity information may become relevant where it can be linked directly to a pleaded allegation concerning mobility, incapacity or loss of amenity.
Data Protection Does Not End the Analysis
Wearable devices can contain extremely sensitive information.
Heart-rate information, health measurements and other information concerning health may constitute special-category personal data for the purposes of data-protection legislation.
Different statutory regimes apply in Northern Ireland and the Republic of Ireland, but both the UK GDPR and EU GDPR recognise processing connected with the establishment, exercise or defence of legal claims.
That does not provide a licence to collect unnecessary information.
Relevance, necessity, proportionality, data minimisation and security remain important considerations. An insurer investigating whether a claimant continued running following an accident may have a legitimate reason for seeking activity information. That does not automatically create a legitimate need for unrelated sleep information, menstrual-cycle information, historic cardiac measurements or an unrestricted GPS history.
The distinction between the information that is relevant to the litigation and everything the device happens to contain is likely to become increasingly important.
Discovery Does Not Automatically Mean Public Disclosure
There is also a distinction between information being produced during litigation and information becoming generally available to the public.
Discovery does not automatically place a claimant’s entire smartwatch or app history into the public domain.
However, if particular information becomes relevant evidence at trial, it may ultimately be referred to in open court, included in expert evidence or discussed in a judgment.
That is another reason why requests should be directed towards the information genuinely required for the litigation.
When Should Insurers Consider Wearable Evidence?
Wearable evidence is unlikely to be worthwhile in the ordinary minor injury claim simply because a claimant happens to own an Apple Watch.
Its potential significance increases where there is a genuine evidential issue concerning substantial or prolonged loss of mobility; an alleged inability to walk, run, cycle or exercise; significant loss of amenity involving sport or physical hobbies; conflicting accounts of physical capability; or other evidence suggesting that recorded activity may materially assist in testing the claim.
The starting point should therefore be the pleaded case and the medical evidence rather than the technology itself.
The question is not, “Does this claimant own a smartwatch?”
It is, “Is there an issue in this claim which relevant smartwatch information could properly help to resolve?”
Preservation and Interpretation of Digital Evidence
Insurers should also consider the practical quality of the evidence.
A screenshot showing a single day’s step count may tell only part of the story. Where wearable evidence is likely to be important, consideration may need to be given to the underlying export, the period covered, the device which produced the information, whether information was entered manually, whether the device was worn consistently and whether data has been synchronised between different applications.
Context matters as well.
Ten thousand recorded steps do not necessarily establish that a claimant was pain-free. A recorded cycle does not establish the absence of an injury. Equally, an assertion that someone could barely walk may require further examination if their fitness application records repeated substantial activity throughout the same period.
Wearable evidence should therefore be considered alongside the medical evidence and the remainder of the evidential picture rather than in isolation.
From CCTV to Smartwatches: The Changing Evidence in Personal Injury Litigation
Claims investigation has changed significantly.
Insurers now routinely encounter evidence generated by mobile phones, social media accounts, dashcams, CCTV systems and vehicle telematics. Smartwatches and fitness applications add another substantial source of contemporaneously generated digital information.
As adoption of these devices increases, disputes about their disclosure, interpretation and evidential weight are likely to become more common.
For insurers, the practical approach is likely to be targeted rather than speculative: identify the particular allegation requiring investigation, determine whether wearable data could genuinely assist, define the information and period required and consider the appropriate procedural mechanism for obtaining it.
Insurance Defence Solicitors in Dublin and Belfast
Lacey Solicitors is an insurance law firm acting for insurers and their policyholders in personal injury and insurance litigation across Northern Ireland and the Republic of Ireland, from our offices in Belfast and Dublin.
Our insurance defence team advises on claims investigation, discovery, surveillance, digital evidence, road traffic litigation and the evidential issues arising from increasingly sophisticated technology.
Wearable data will not be relevant in every personal injury claim but in every case it is tested by our team who carry out the relevant online searchs and social media searches. Where a plaintiff’s mobility, physical activity or ability to participate in sport is directly in issue, information generated by a smartwatch or fitness application may increasingly become part of the evidential picture.
The witness of the future may not always be a person. Sometimes, it may be the device on their wrist.
