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As an injured person you can expect every aspect of your private life to be poked and prodded. Once you make a claim, whether it be for a workplace accident, a motor vehicle accident, or an accident that occurred in a public space, once the insurer is aware of the claim you can expect video surveillance to be taken of any activity you engage in. This can be video of something as simple as you getting in and out of a car. Some investigators have even started to use drones to video tape Claimants, particularly when they know they will be out attending a medical appointment arranged by the insurer.
Social Media and Personal Injury Claims
Even social media is now being used by Defendants to undermine a Claimant, particularly, Facebook entries. Facebook has been used Defendants, to undermine what the Claimant says to doctors and treaters about their injury and what they tell their friends and family on Facebook.
Example: Facebook and a Personal Injury Claim
A recent example is a matter involving the Transport Accident Commission (‘TAC’), Millican v Transport Accident Commission [2016] VCC 180. Here the Claimant, Ms Millican, was injured in a serious motor vehicle accident in 2009. The driver of the vehicle was tragically killed and Ms Millican, one of a number of passengers, was injured. The Claimant suffered a number of injuries including an injury to her shoulder, and depression from the traumatic experience, her injuries and the loss of her friend.
As all Claimants are required to do in order to claim common law damages for pain and suffering and loss of earnings, Ms Millican was required to show that the consequences of her injuries were ‘serious’. Not just that she had been through this painful experience but she had to detail every part of her life that the accident had impacted on and demonstrate that the impact was serious.
The seriousness of a Claimants injuries can be shown in many ways. For example, the Claimant generally makes a statement (an Affidavit) regarding the activities they can no longer participate in due to their injuries or which they still participate in but with pain. In many cases this includes social activities such as going dancing, running, going to a football game, cycling, playing with their children etc. And because doctors and experts ask, the Claimant tells about the impact of the injury on their life to these doctors and experts who make a note of what the Claimant tells them.
Video Surveillance and Personal Injury Claims
If the Facebook entries or video surveillance of a Claimant do not match the statements made to the court or the doctors and experts the opportunity arises for the insurer to say the Facebook entry reflects the true impact of the injuries on the Claimant, rather than the verbal statements made over time. This is even though the Facebook entry is a small short snap shot in time with respect the long history of the injury. Since Facebook is generally used to talk yourself up, not down, what most people post on Facebook may not reflect what has been told to the doctors and experts; because you celebrate what you can do not what you can’t on Facebook. It is normal to post pictures of happy occasions, no matter how few of them you have due to your injuries. However, these happy posts can be used to question the credibility of the Claimant and can lead the court to doubt the severity of the impact of the injury on a Claimants life. This is what happened to Ms Millican.
How Facebook was used to discredit a Claimant
The TAC managed to access Ms McMillians Facebook page. A large amount of material was downloaded which appeared to contradict Ms Millican’s statements over many years about the impact of her injuries on her daily life, particularly the level and effect of her depression on her life.
The court found that the Facebook material supported the contention that Ms Millican’s depression was less intense than what she had reported to experts and the court. One Facebook photo which showed her holding her son at a Christening was deemed to be inconsistent with her claim that she has difficulty holding her son.
The material posted by her may have been only small snapshots of an otherwise seriously injured person, but the damage to her credibility was substantial.
At Henry Carus + Associates we understand that injured people and their families tire of the consequences of their injuries and constant pain and may want to occasionally project a more positive light to friends, particularly on Facebook. A positive image of your life can be beneficial rather then focusing on the negative. However, until a Claim is settled this is most likely to be used in a negative way by any Defendant.
At Henry Carus + Associates we remind our clients not only to watch what they put on Facebook, that they will often be the subject of surveillance, and at all times not to worry about what they can do but to just give an accurate accounts of their injuries. We will look after the rest.
