Keywords
Assessment of damages – social media – credibility – global award
Facts
On 25 March 2021, the Plaintiff was rear-ended on her way home from work. She allegedly suffered a musculoligamentous cervical spine injury and a right shoulder as a consequence of the accident.
Liability was admitted. The Defendant disputed the alleged right shoulder injury, and the alleged severity of symptoms based on various social media photos posted by the Plaintiff after the accident.
Decision
Cash, DCJ, delivered 30 January 2025. The Plaintiff was awarded damages of $148,826.49.
Ratio
His Honour found that the combined effect of various social media photos and videos posted by the Plaintiff after the accident caused him to doubt the reliability of the Plaintiff’s evidence.
While His Honour acknowledged that social media does not always reflect reality and that a cautious approach must be taken to draw conclusions from such evidence, this was a situation where a conclusion could be drawn due to the series of images and videos over time, rather being drawn from an isolated photo.
The series of social medial material depicted the Plaintiff performing movements inconsistent with the claims.
As the Plaintiff suffered from non-verifiable radiculopathy, His Honour consequently preferred the evidence of Dr Fitzpatrick (who used a goniometer during examination) over the evidence of Dr Byrne whose opinion was instead reliant on the Plaintiff’s subjective reporting.
Despite His Honour accepting Dr Fitzpatrick’s evidence that the cervical spine gave rise to zero per cent whole person impairment and rejecting the alleged right should injury, His Honour was prepared to allow global awards of $50,000 for past economic loss and $75,000 for future economic loss.
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