Surveillance is commonly utilised by defendants in personal injury matters as a way to weaken or detract from a plaintiff’s claim. In more recent times, the preferred method of surveillance adopted by defendants is through the monitoring of social media platforms such as Facebook, Instagram and LinkedIn.
Social media has been described by the courts as being akin to a modern day diary. The use of social media can have a significant impact on the outcome of a plaintiff’s personal injury claim. Two recent cases that show the detrimental impact social media can have on a personal injuries claim are the decisions of Digby v Compass Institute Inc & Anor  QSC 308 and the New South Wales decision of Foong v Ghaly, McLellan  NSWDC 303.
The decision of Digby v Compass Institute Inc & Anor  QSC 308
In this case the plaintiff was injured at her workplace on 18 June 2008 (“date of incident”). Her employer, the Compass Institute, offered disability services to persons with a range of intellectual and physical disabilities. On the date of incident, a police officer attended the employer’s premises to present on “stranger danger”. As part of the presentation, the police officer activated the lights and siren of the police vehicle. This caused a client with physical and intellectual disabilities to startle and fall. The plaintiff tried to stop the client’s fall and, in doing so, sustained an injury to her right shoulder. The plaintiff alleged that subsequent to this incident she developed a constant tremor in her right hand and arm, along with severe pain throughout her upper body. She also alleged that as a result of this incident she sustained a secondary psychological/psychiatric injury.
Justice Atkinson held that the plaintiff’s employer was liable for their failure to appropriately brief employees and, for insufficiently planning what to do once the warning to activate the siren was given by the police officer.
During the trial the plaintiff was ordered to produce her Facebook records. The photographs on her Facebook page revealed that the plaintiff was not as socially isolated or physically restricted as alleged. She had posted pictures of herself camping on two separate occasions following the date of incident. She had also been to football matches, a rock concert in Brisbane and Aussie World. She had met two new partners since the incident and had been dealing with personal issues unrelated to her injuries, such as the attempted suicide of her youngest son. Further, during cross-examination, the plaintiff admitted that she regularly spends hours sending and receiving messages on Facebook, despite her alleged physical restrictions. This evidence was inconsistent with what the plaintiff had told the doctors who assessed her throughout the course of her claim.
Justice Atkinson formed the view that the plaintiff has deliberately exaggerated her symptoms, probably for financial gain. This was based on the physical surveillance of the plaintiff and on the material posted on her Facebook.
The plaintiff was awarded $158,045.15 in damages however, this was a significantly reduced figure, especially taking into consideration the fact that the plaintiff had not worked for a considerable period of time.
The decision of Foong v Ghaly, McLellan  NSWDC 303
The plaintiff in this case commenced proceedings for damages arising out of two motor vehicle accidents that occurred on 2 March 2011 and 2 September 2011. The plaintiff claimed for physical and psychiatric injuries, which she alleged were caused by the subject accidents. The plaintiff was self-represented.
The plaintiff sought compensation in the amount of $20,665,550 for both cases. The basis of her claim for economic loss was that she had been self-employed for over 20 years and that she was a hard working person with transferable skills if the motor vehicle accidents had not happened to her. The plaintiff also claimed compensation for home care, alleging that her inability to perform many household tasks was due to the injuries she sustained in the accidents.
Several extracts from the plaintiff’s social media accounts were tendered during the trial. According to her posts on social media, the plaintiff’s social and personal life appeared to have continued unabated, as did her work and social activities.
The plaintiff protested that the material on her Facebook page and other social media sites was irrelevant and should not be tendered. Justice Gibson permitted the tender of this material for a number of reasons, including the following:
- The tender of social media records is now routine in many different kinds of civil and criminal proceedings.
- There are no special provisions for the tender of such material, nor is there any need to warn an opponent.
- Social media entries are commonly tendered in personal injury proceedings in relation to claims for damages where the plaintiff is asserted not to have suffered the kind of ongoing disabilities that are claimed to have been suffered. It is a valuable source of material, in that it has been created by the party against whom the material is tendered.
- It would seem disingenuous for a party who has created such entries to object to their tender, although common sense suggests that some social media may well exaggerate or indeed fantasize about the lifestyle of the person who posts the material (Davies v Nilsen  VSC 557 at ).
- Justice Gibson was unable to find any judgments where social media pages have been excluded in personal injury proceedings. To the contrary, entries on LinkedIn and Instagram and Facebook, are increasingly tendered without objection in personal injury proceedings.
In this case, the judge found that the plaintiff’s lack of credibility was overwhelming and any claim that she had lost the ability to work in general, let alone as a real estate agent, was untrue as the evidence is inconsistent with the plaintiff’s posts on social media concerning her work success and studies.
The plaintiff was awarded $1,250 in each matter. This figure represented $1,000 in each claim for past wage lost and the nominal amount of $250 in each claim for future medical expenses.
As can be seen from the cases above, the use of social media can have a significant impact on the outcome of a personal injury claim. It is important for plaintiffs to ensure that they are restricting their privacy settings and monitoring the content that they (and their friends and family) post online.
A plaintiff should always assume the other side is looking for evidence to support an allegation that their daily activities are inconsistent with the injuries that they are claiming for.
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