Social Media and Surveillance in Personal Injury Claims

November 3, 2016Personal Injury   Comments: 2

Facebook has been described as the “modern day diary”; you would be hard pressed to not know at least one person who is currently active on Facebook, or using some form of social media.  The unfortunate reality for many insured persons is that intrusive investigations and surveillance are routinely employed by insurers to minimize damages. Social media and online surveillance is having a far greater impact on cases than people think.

Related image

The Impact of Social Media

The Queensland Supreme Court has handed down a decision for a workers’ compensation matter where the overall award was reduced due to surveillance footage and Facebook evidence that was tendered by the Defendants.

InMelanie Digby v The Compass Institute Inc & State of Queensland [2015] QSC 308, Ms Digby, a disability carer, sustained injuries to her right arm and shoulder at work. Ms Digby had attempted to catch a disabled patient from falling when he was startled by a police car siren during a police presentation at her place of work.

Ms Digby claimed that she had developed an uncontrollable tremor in her right arm, experienced severe pain and had suffered from significant restrictions in the use of her right arm altogether. Throughout the trial period (and particularly whilst under cross-examination), Ms Digby’s right arm was “constantly shaking vigorously” and “appeared to be quite uncontrollable”.

Furthermore, Ms Digby presented medical evidence to indicate that she had sustained a significant psychiatric injury, stemming from the physical injuries she had sustained. It was claimed that Ms Digby was ‘socially isolated’ and “she did not pursue any social activities due to the effects of her injury”.

During the trial, the Defendant’s Solicitors led two main forms of evidence to discredit Ms Digby’s claim: surveillance footage of Ms Digby in her day-to-day life (particularly driving), and Facebook posts that Ms Digby had placed online.

The surveillance footage showed:

  • Ms Digby’s driving which demonstrated that she was able to:
  1. travel alone and in company;
  1. travel outside in the general public without experiencing social anxiety;
  1. physically drive and make use of her right hand on the steering wheel (she was shown manoeuvring the car with her right hand on the steering wheel whilst her left hand changed the gears).
  • Ms Digby smoking a cigarette in her right hand (in the absence of a tremor); and
  • Opening and closing the car door with her right hand (in the absence of a tremor).

The Defendant’s legal representatives also “friended” Ms Digby to investigate her Facebook account. These Facebook investigations revealed:

  • Ms Digby had over 200 friends with whom she would converse with for hours at a time, several times a week (these conversation chains were available to peruse);
  • There had been significant life events in Ms Digby’s life which provided alternate reasons for her psychiatric injury. Ms Digby had not disclosed these issues to her treating psychiatrists; and
  • Photographs of Ms Digby camping and socializing subsequent to her injury with her children and friends.

It was accepted by Her Honour that Ms Digby sustained an injury. However, after considering the surveillance footage and the Facebook evidence, Atkinson J considered that Ms Dibgy had exaggerated her injuries for financial gain, and that her damages should be reduced accordingly:

[211] I have formed the view that Ms Digby deliberately exaggerated her somatic symptoms probably for the financial gain which she hoped to obtain from the litigation. The contrast between her behavior in the surveillance video and when asked by her own counsel to mark an exhibit, and her reported and observed symptoms when she saw medical practitioners and otherwise in court, is so stark that no other explanation appears reasonable.

Social media and surveillance had a huge impact on the way that damages were assessed in this case. In a personal injury claim, it is very important for anyone claiming compensation that they are aware that they may be, at some stage of their claim, under some form of surveillance. Facebook and social media accounts become a very cheap and effective method of surveillance for Insurers; whether it be directly through the Claimant, or through the Claimant’s family and friends.

It is important that you remain honest and truthful in your dealings with your medical specialists and treating practitioners, and you remain aware of your online presence.

If you have been involved in an accident or injury that you would like to discuss with us, we can be contacted on (08) 9388 6639 for an initial, non-obligation consultation.

You can read the full case here: http://archive.sclqld.org.au/qjudgment/2015/QSC15-308.pdf

______________________

Child Abuse Claims – Out of Time?

There are two main ways that victims of sexual abuse can recover compensation. These are:

1) Criminal Injuries Compensation

The relevant Criminal Injuries Compensation Act 2005 (WA) provides that claims must be bought within three years (which can be extended) and you must have actively assisted the Police. Another disadvantage is that damages are “capped” at certain jurisdictional limits.

2) Common Law Damages

Through bringing a civil action directly against the abuser for the harm suffered. Many such claims cannot be bought as they are outside the “limitation period”, discussed further below.

Limitation Periods are time limits in which legal proceedings must be commenced. In Western Australia, actions for personal injury must (generally) be commenced within 3 years from the date on which it happened. There are exceptions that arise for children who are injured, with a further distinction made between children who were under 15 at the time of the injury, and between the ages of 15-18 years.

Given the traumatic nature of sexual abuse, many victims and survivors of child sexual abuse do not report their abuse for many years, even decades. Many survivors are unable to disclose their abuse until they reach adulthood. Some survivors do not ever disclose the abuse they have suffered.

The limitation periods (generally 3 years) for these matters are simply put, inappropriate and ineffective. With the strict application of the limitation period, any option for seeking compensation has generally ceased before the victim has even disclosed the abuse because the victim is deemed ‘out of time’.

“The statute is designed for someone who has tripped over in K-Mart, it is not designed for victims of child sexual abuse”[1]

Research findings from the recent Royal Commission into Institutional Responses to Child Sexual Abuse have revealed that on average, it took survivors 22 years to disclose abuse. It was also found that men took longer than women to disclose abuse.[2]

As a result of the Royal Commission, the different States and Territories in Australia are reviewing their limitation period laws. In 2015, Victoria was the first State to enact changes to the limitation period laws by introducing a Limitation of Actions Amendment (Child Abuse) Act 2015. In introducing this Act, the Victorian Attorney General, the Honorable Martin Pakula stated:

“The trauma of child abuse can prevent victims from seeking immediate redress for the suffering they have caused, so our laws need to account for this – not penalise people for it……. This is about giving victims greater access to justice, allowing their suffering to be rightfully acknowledged and holding those to blame to account for the harm they’ve caused.”

In Western Australia, an amended Bill introduced by Liberal MP Graham Jacobs seeks to remove the limitation period completely for personal injury claims arising from child sexual abuse. (The Limitation Amendment (Child Sexual Abuse Actions) Bill 2015.)

If introduced, this means: if you have suffered physical or mental injuries as a victim of child sexual abuse in Western Australia, the proposed legislation will allow you to take civil action seeking compensation, regardless of how long ago it occurred.

We are eagerly following the progress of this Bill through Parliament.

Please note the following services that provide support for sexual assault victims:

1800 RESPECT 
1800 737 732
Sexual Assault, Family & Domestic Violence counselling phone and webchat. Free 24/7
1800respect.org.au

Bravehearts 
Counselling for survivors and child protection advocacy
1800 272 831
https://bravehearts.org.au/services/do-you-need-support/

Living Well
Online support for male survivors of sexual assault
livingwell.org.au

[1] “Law changes to be part of abuse solution”, obtained online from: http://www.sbs.com.au/news/article/2015/09/09/law-changes-be-part-abuse-solution

[2] See discussion paper: https://www.childabuseroyalcommission.gov.au/getattachment/19f08006-ee11-4ef1-97c0-a289ba2a1f92/14-Limitation-periods