Social Media - The New "Surveillance" In Personal Injury Claims
The Personal Injury Lawyers first reported on the Brisbane Supreme Court case of Digby v The Compass Institute Inc & Anor  QSC 308 (“Digby”), a claim by a worker for injury compensation, at the time of its determination in November 2015. This case was the first to involve an order by the Court for a Plaintiff in a personal injury claim to provide a copy of all material contained in their Facebook account to the Defendant insurer. What this case shows is, firstly, your social media accounts can be used against you in your personal injury claim, and also, just how seriously detracting social media can be to a Plaintiff’s case.
Social media: not personal injury claim friendly
The social media pages of those injured and seeking compensation are now a means of surveillance by insurance companies. Social media is being widely used to reduce claims of how extensive a Plaintiff’s injuries are and how much they impact on their capacity to socialise, work and undertake their everyday living activities.
At The Personal Injury Lawyers, we are continually reminding our clients of how important it is that they avoid using their Facebook, Twitter or Instagram and any other social media accounts during their personal injury claims, and if they feel they must utilise them, then they must be careful of what they disclose via this medium. They need to be aware that even the material they post privately may not be as private as they think.
But even when using due diligence when posting, people often innocently post material that can be taken the wrong way by those viewing it, including insurance companies and a Judge in a Court of law. It can be very hard to dissuade from this incorrect notion, or interpretation of the posted material, once it is adopted. It can result in a huge injustice when damages are awarded.
The other problem with social media is that it is not only yourself you have to be concerned about, but you also have to be aware of what is being posted by your friends and family. Insurers will look at those listed on your Facebook page as friends and relatives and also view their Facebook pages. An innocent family birthday party posting or an innocent joke posted on their social media or your own Facebook Page could cause an injured Plaintiff a lot of difficulties in their case.
So it is not just yourself you need to be aware of but if you have a personal injury claim, you need to also advise your friends and family of the need to be very careful in their depiction of you in their public social media postings.
How social media was a problem in Digby's workplace injury claim
In the case of Digby, the Plaintiff was a female employee of the Compass Institute, engaged in the position of a support worker for the disabled. On 18 June 2008, Compass had a Police Officer give a presentation at the Institution where the Plaintiff worked, about stranger danger. During the presentation, the Police Officer activated a siren, causing one of the Compass clients attending, to be startled and fall.
The Plaintiff claimed she injured her right shoulder trying to save the client from falling and being injured. She alleged development of a constant tremor in her right arm and hand from the work injury which was very debilitating. She also claimed she suffered from a psychiatric injury which she had developed due to the impact of her right shoulder injury on her pre-injury lifestyle and employment.
At the time of trial, seven years after the work accident, the Plaintiff claimed she had not been able to return to any form of employment due to her work injuries. At the trial of the matter, surveillance was submitted by the Defendant showing the Plaintiff going about her daily activities without evidence of the alleged tremor.
Now surveillance in a case like this is not surprising. In nearly all personal injury claims that go to trial, there will be some surveillance involved. However, what is most interesting in this case is the fact that the Defendants sought an Order at trial for the Plaintiff’s Facebook material to be disclosed, an Order which was granted by the presiding Judge.
In making the Order for disclosure of Facebook material, Her Honour Justice Atkinson expressed her view that Facebook was now the modern day Diary, and was therefore most likely disclosable by the Plaintiff. It should be pointed out however, that the grant of the Order was not pursuant to argument, but was made with the consent of the parties.
It was also not a decision by an appeal Court. This means that the Order made for Facebook disclosure in Digby is not a definitive determination on the disclosability of Facebook material. However, in saying this, it should make all Plaintiffs aware that there is the potential for their Facebook material having to be produced in their personal injury claim.
The Facebook Evidence in Digby
In contrast to the Plaintiff's assertion that she was socially isolated, the Facebook records showed otherwise. The records indicated that the Plaintiff was continually in contact with her Facebook friends and had an active social life, including forming a romantic relationship.
The Facebook posts and messages of the Plaintiff also provided evidence that the Plaintiff had been experiencing other quite significant stressors in her life since the accident that could be impacting on her psychological state, which she had not disclosed to psychiatrists when assessed during her claim.
The Plaintiff’s Facebook material detailed serious difficulties she had been experiencing with her 14 year old son who, she wrote to a friend, could become aggressive and who she feared. She also communicated with a friend of how upset she was over her son’s attempted suicide, her fear she would be found an unfit mother by Social Services, and her son removed from her care. The Plaintiff was also shown to have logged onto Facebook for several hours a day and was able to send messages during this period despite her alleged constant tremors.
As a consequence of this evidence, the Plaintiff lost her credibility, making it very difficult for the Judge hearing her case to accept her evidence as to the extent of her injury and how it impacted upon her everyday functioning and employment. It resulted in a significant reduction of the compensation she was awarded.
What can a person with a personal injury claim learn from this?
Firstly, as we have stated above, participating in Facebook and any other form of social media is not advisable during your personal injury claim. It provides too much opportunity for insurers to compromise your case. Remember, what you write or post via your social media accounts may very well have to be provided to the insurer in your case, according to the comments made by the presiding Judge in Digby.
Secondly, it is very important for anyone bringing and pursuing a personal injury claim, to be accurate in their reporting of their injuries, the extent of them and how they are restricted by them in their activities of life. Claimants, when reporting their pain and restriction, need to be aware that it is quite acceptable for those injured to still live their lives as best they can with their injuries. In fact, they have a duty to do so at law.
They are not expected to live closeted lives, with no interaction, enjoyment of life or employment. Injuries can wax and wane, with injury victims having bad days as well as good days, where they can undertake or attempt certain activities, although this may cause some aggravation of their injuries. It is also accepted that although claimants may have difficulty undertaking certain tasks, or they may cause them pain, they still may attempt to undertake those tasks or have little option but to do so in their circumstances.
Avoid this by using an expert personal injury lawyer, specialising in personal injury law
An experienced personal injury lawyer will help you properly describe the impact of your injuries on you and your life, so that you are not compromised by exaggeration or inconsistency should surveillance or Facebook material be disclosed. However, in order to do this, even the very best personal injury lawyer needs honesty and a forthright accurate accounting from their client.
Remember, when discussing your case and your injuries with your lawyer, the information you provide is privileged, meaning that you or your lawyer cannot be enforced to provide that information to the other side. This means that you are free to disclose fully all information you need to your lawyer to ensure they are aware of everything they need to be in order to properly pursue your case for you. They will know how to best deal with all the circumstances surrounding your case.
The Personal Injury Lawyers specialise in personal injury law and accident and injury compensation claims, with Accredited Specialists trained in all aspects of injury compensation. They can help you navigate through the complexities of the claim process and provide you with expert and specialist advice so that your claim is not compromised as in the case of Digby.
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