Facebook undermines serious road injury case

This case update shows how the TAC, and anyone else defending an injury claim in court, can use potentially damaging Facebook images and posts as evidence when undermining a plaintiff’s claim to be seriously injured.

Background

The plaintiff, Ms Millican, was injured in a traumatic car accident on 7 February 2009. She was one of seven passengers travelling in a vehicle driven by a close friend of hers, Roz. Tragically, Roz misjudged a corner and the car ran into the gravel, hit trees and rolled. Roz was killed. Ms Millican suffered injuries including to her right shoulder and a psychological condition.

Ms Millican sought leave pursuant to s94(4)(d) of the Transport Accident Act (“the Act”) to commence proceedings for damages in respect of her injuries.

She sought a determination that she was suffering from a serious injury both within the meaning of paragraphs (a) and (c) of the definition of serious injury in s93(17) of the Act.

Ms Millican was required to establish that the consequences of her injuries were “very considerable” and “certainly more than 'significant or marked' Humphries v Poljak [1992] 2 VR 129.

Evidence was adduced as to the ongoing consequences of Ms Millican’s injuries including flashbacks, nightmares, social withdrawal, use of anti-depressants and pain medication and shoulder pain.

How Facebook was used

The use of Facebook material in this case is of particular note.

The TAC presented a large volume of material downloaded from Ms Millican’s Facebook site arguing that it “gave the lie to the image which her case generally gave of a woman substantially housebound and reduced to watching television” and ultimately the court agreed.

The court found that the Facebook material supported the contention that Ms Millican’s depression was less intense than what she had reported to the doctors and to the court. Facebook photos were also found to be inconsistent with a claim made that she has difficulty holding her son.

Material posted by Ms Millican after a compulsory conference where the issue of Facebook photos was raised was held to be “self serving.”

It was concluded that neither the accident related psychological condition or the right shoulder condition met the threshold.

This case is interesting in its use of Facebook material to contradict histories provided by the plaintiff to doctors and accounts provided in affidavit material and in viva voce evidence.

It is a reminder to plaintiffs not only to watch what they put on Facebook, but at all times to give accurate accounts and not exaggerate. It is likely that in a number of cases the damage to the plaintiff’s credit will be larger than the damage done by the Facebook photos or posts alone.