In the United States, suspects arrested in criminal cases are constantly warned that anything they say may be used against them in a court of law. In Australia, lawyers are now warning plaintiffs that anything they post on social media can and will be used against them by defendants and insurance providers in personal injury, worker’s compensation and other types of compensation cases.
These issues were to the fore recently in Foong v Ghaly, McLellan  NSWDC 303. In this case, the plaintiff sought $20,665,550 in compensation for physical and psychiatric injuries sustained in two separate motor vehicle crashes she was involved in within a period of six months.
The plaintiff – who represented herself in the matter – argued that the injuries stemming from the accidents precluded her from working and sought compensation for economic loss. She also claimed that she required help because the injuries hindered her ability to do routine household chores and sought compensation for home care.
Finally, she argued against the use of her social media posts at trial, claiming they were “irrelevant and should not be tendered”. The judge disagreed and permitted their use for the following reasons:
- the use of material posted on social media as evidence in civil and criminal matters is now considered routine;
- relevant laws do not include any special provisions for use of such material, nor do they require that an opponent be advised they will be used;
- this type of material is often proffered in personal injury cases when there is doubt about the claimant’s credibility and/or the extent of the injuries he or she is claiming.
The judge also allowed the material to be tendered because he couldn’t find any legal precedent for the exclusion of social media pages from personal injury cases. However, there is growing legal precedent for the inclusion of such material.
In the end the judge’s reasoning was well founded because the plaintiff’s social media posts did not support her claims. In fact, the judge found that the plaintiff’s “lack of credibility was overwhelming” and dismissed her claim that the injuries rendered her unable to work, based on some of her social media posts.
In the end, her award was just $1,250 in each case – $1,000 in each claim for past wage loss and $250 in each claim for future medical expenses.
Lawyers advise this is a cautionary tale not only for people seeking compensation in New South Wales, but elsewhere as well. This is because insurance providers – many of which have their own investigators – have learned what type of information to look for on various social media platforms. Something you post without a second thought could turn out to be incriminating evidence used at trial.
You should also be aware that your posts aren’t the only ones subject to scrutiny. Once they gain access to your social media pages, insurers will note your connections on each platform. They’ll then review any posts those people make about you. A seemingly innocuous comment such as, “it was great to see you at the family barbecue last week”, or photos of you at the family barbecue on someone else’s timeline, could be used as evidence against you in a case where you are seeking compensation as a result of, for example, the psychological impact of your accident/injuries on your desire to socialise (or lack thereof).
As we have seen, insurers will use material sourced from your social media and related accounts not only to prove that you weren’t as badly hurt as you claimed, but also to show that you are still capable of working, and the like. This is largely because, as the judge opined in Digby v The Compass Institute Inc & Anor  QSC 308 (‘Digby’), Facebook is akin to a “modern day diary,” and “therefore most likely disclosable by the plaintiff”.
Digby is widely recognised as “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.
Nevertheless, the Digby case appears to have opened Pandora’s box. As a result, if you are a plaintiff in a compensation case, you should exercise caution when using social media or refrain from using it at all until the matter has been resolved.
You should also be truthful, thorough and accurate when reporting a work-related or personal injury, especially if you plan to seek legal recourse. Although it may seem beneficial to embellish the ways in which the injury has affected your life, it is crucial that you refrain from doing so as this is rarely the case.
This is an emerging area of the law where new developments are likely to surface. If you have any questions about the use of social media in connection with personal injuries, or how it may affect your case, contact us today.