The lesson in Digby v The Compass Institute Inc and Anor  QSC 308 (‘Digby’) is that insurance defence surveillance and social media accounts such as Facebook can be critically serious to a workers compensation negligence claim if not managed early and properly by a personal injury lawyer Brisbane.
The plaintiff was a woman employed by the Compass Institute as a support worker. On 18 June 2008, Compass had requested a police officer to provide a presentation about stranger risks. In the course of the presentation, the police officer activated a siren that caused a Compass client with a disability to fall. The plaintiff suffered a right shoulder injury trying to assist the client.
The Plaintiff’s Alleged Injury
The plaintiff’s shoulder injury subsequently developed into a constant tremor in her right hand and arm, as well as severe pain in her right upper body. She also suffered a psychiatric injury and had not returned to work since the accident in 2008.
Compass was liable in negligence for failing to brief its staff and insufficiently planning what to do once the police officer gave the warning to activate the siren. The police officer gave specific details to staff about when he was going to activate the siren and warned them appropriately. Thus, the State of Queensland was not liable for their part in the accident.
The plaintiff was ordered to produce her Facebook records on trial. Contrary to the plaintiff’s claims that she was socially isolated and suffered psychiatric injuries due to the accident alone, her Facebook records showed otherwise.
There was evidence that she communicated with a friend about her son’s problems, particularly his suicide attempt and her fear that she would be considered an unfit mother. The plaintiff failed to disclose these other issues that also had an impact on her psychological health.
The plaintiff logged on to Facebook for several hours a day and was able to send messages during this period notwithstanding her constant tremors.
Surveillance conducted on the plaintiff showed that she was able to open and close car doors despite her tremors. She could drive, smoke a cigarette, rummage through her bag with her right hand and use both hands to text on a mobile phone. In court she was also able to write with a pen in her injured hand.
Concerning the surveillance, Atkinson J concluded from all the evidence that the plaintiff “suffered from a relatively minor shoulder injury, the physical effect of which she has exaggerated. It may have caused adhesive capsulitis for a period but that is now resolved.”
The plaintiff was awarded $158,045.15 in damages for the accident. However, it is important to note that she had gone about 7 years without employment since the accident. She was only entitled to $50,924.19 in past economic loss due to her lack of credibility and lack of medical evidence considering her unfit for past employment by reason of her should injury alone.
The Lesson of This Case
East Coast Injury Lawyers has the following tips for our readers to draw from this case:
Whether people would like to admit it or not, social media is not as private as they expect. The courts can compel you to disclose your social media records if it is reasonably connected to your accident and injuries.
Claimants may be reluctant to pursue a claim because they are afraid that insurance companies will use social media information to negatively portray the claimants in a negative light. This is certainly one of the strategies that they employ in order to reduce the amount of damages they are liable for.
However, this strategy should not be overestimated. An accredited specialist in personal injury who is aware of these issues can effectively mitigate how social media can affect your claim.
Listen to your Doctor
Do not be fooled into believing an insurance company when they say the truly injured people do not live their lives. It is common to think that injured people sit at home all day and stare at the wall because there is nothing else to do.
As a matter of fact, even in Digby doctors recognize that some medical conditions can fluctuate in their severity and patients can have good days and bad days. On good days, they are capable of doing a lot more than on bad days but this certainly does not mean that such good days are a consistency.
The best advice is to listen to your doctor and do your best to follow their instructions. It is important that claimant’s actively pursue any reasonable treatment, employment, socializing or other recommendations made by a doctor to improve their health and recovery.
Protect Your Credibility
One of the biggest mistakes made in Digby was clearly the non-disclosure of the social media. People make the common mistake of trying to navigate through the legal system based on their own understanding and assumptions. This often leads to decisions that may damage their claim such as withholding relevant information, trying to exaggerate or lie about facts, or underestimating the level of education and training from an insurance company’s lawyer.
Digby shows that credibility is one of the most important factors of a successful case. It is important that claimants speak with a personal injury lawyer to get comprehensive information about their legal rights.
There is a duty of confidentiality with a client-solicitor relationship that is also imposed in most circumstances to make sure that a claimant is comfortable with disclosing everything to their lawyer without fear of negative repercussions.
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