The perils of social media when pursuing a damages claim

Surveillance of claimants in personal injury claims is nothing new.

Many years ago, as a newly qualified solicitor assisting a partner with some heavyweight cases, I remember watching interesting footage of claimants climbing ladders, driving vehicles and even on one occasion memorably demolishing a small building, which arguably were activities inconsistent with their medical evidence.

Such clients were always in a (very) small minority and more often than not the surveillance footage was inconclusive rather than spectacular. So, while surveillance footage is no longer delivered on a nice chunky VHS cassette, little has changed in terms of the content.

Nowadays, the implications of a claimant behaving in a way that is inconsistent with their pleaded case or medical evidence are considerably more drastic than they used to be. One might argue rightly so, but that is a topic for another article. 

It would be difficult for even the most dedicated surveillance operative to make sure they were always there at the right time and place to capture the most helpful, or damning, evidence.

However, with the advent of social media and the compulsion of large swathes of the population sharing their every mundane activity, there may be no need for anything approaching round the clock surveillance, because the claimant will helpfully do the work for you.

It is many years now since I was first confronted with Facebook entries recording a weekend of a claimant’s enthusiastic gardening.

Since then, the volume of such material has expanded and diversified considerably. In addition to the triumphant recording of lawns mowed, DIY projects completed and (occasionally) mountains climbed, all manner of information about fitness regimes and such like is now ‘out there’.

Inconsistent evidence

In the event anyone has any doubts about the damage that can be done by social media posts I invite them to read the approved judgment in the case of Thomas v Owen.

There are plenty of other examples no doubt, but this judgment articulates well the havoc that can be caused by inconsistent evidence carefully gleaned from social media.

Dishonest claimants deserve what they get, but my observation would be that social media usage also poses all kinds of risks to people who are far from dishonest.

For many people, social media is a means of celebrating or recording good news, achievements or triumphs, however modest they may be. Of course there are more serious contributions made, but in the context of personal injury litigation it is the day-to-day social media contributions that are the important ones.

Not long ago, I was forwarded, under cover of a witness statement from the person who had harvested it, various social media content relating to a client of mine.

It was far from conclusive, and the claim was amicably resolved not long afterwards, but it brought home an interesting point.

There was no question that for a few months following the accident in question the claimant was in a bad way and significantly incapacitated. The social media disclosure did not seek to indicate otherwise, all the content related to several months later.

I asked the claimant if he had posted on social media when he had been suffering significant incapacity. The answer was no and he said it did not occur to him to take to social media to record the fact that he was stuck at home, unable to work. But almost as soon as the claimant did make some progress and was able to go out, he posted on social media.

To post or not to post

That brings me to another point. Innocent social media content can be open to serious misinterpretation. Trying to explain that the picture posted on Instagram of a scenic view was taken while in a parked car for instance, is always going to sound a bit of an excuse, although frequently it is the truth.

Worse still, a comment made ironically online can appear to paint a very different picture of what someone can and cannot do.

So, what conclusions can we draw? If a claimant posts on social media, while there may be some narrow exceptions, it is realistic to assume that the content will end up in front of a judge if there is any potential for it to assist the defendant. 

Most social media posts reflect positive aspects of people's existence, so it's always going to portray a skewed picture of day-to-day life.

There is also considerable scope for misinterpretation of photos and short video clips. While dishonest claimants deserve what is coming to them, honest claimants should use social media at their peril.

It is hard to see any upside from frequent engagement with social media while pursuing a damages claim. If the temptation can be resisted, perhaps the best approach is to avoid social media at all, until the claim is well and truly settled.

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