For the most part, it will be ‘friends and family’ who like and comment on photos and status updates. However, if you’re involved in a Personal Injury claim, third-party insurers may also take an unwelcome interest in your content.
The simplicity of going ont o social media platforms and searching for a claimant seems increasingly popular in the insurance industry, particularly in relation to personal injury claims. Posts can range from the incident circumstances to images and videos of life post-injury.
Social media can be used by insurers to provide evidence to the court that a pursuer has exaggerated the extent of their injury. Insurers are entitled to make independent investigations into the veracity of any claim and vast sums of money are spent investigating fraudulent claims. Instructing private investigators to put a claimant under surveillance is not uncommon but can be expensive. Accessing a claimant’s social media profile is straightforward and relatively inexpensive.
This is a worrying trend. There is a clear difference between the ‘online’ and ‘offline’ persona. The vast majority of social media users post positive, uplifting content about their lives and achievements. Downhearted or negative posts are rarely shared as users are driven by a desire to portray a positive outlook of themselves. This has become more prevalent with the ever-growing array of filters, green screens and ‘check-ins’.
It is unfortunate and unacceptable that a negative stigma still surrounds mental health issues. Many cannot speak out for fear of being criticised and hide behind the rosy picture they have painted on their social media pages.
Of course, there is a time and place for such investigation. If a claimant reports a physical disability so significant that he or she can’t work, yet social media posts reveal video footage of the claimant on the ski slopes, that clearly establishes an exaggeration of the extent of their injury. The flip side is the claimant who has suffered psychological trauma, yet continues to post positive messages. Insurers must be cautious in attempting to use such posts as “evidence of exaggeration”.
Psychological injury can be subtle and many suffer in silence. It’s dangerous for insurers to attempt to establish exaggeration based on an individual social media profile alone. Physical injuries can often be identified in photographs and X-rays, but the psychological impact cannot and is often masked with a smile.
In the case of Conway v Paton and Another, Sheriff Fife issued a Judgement in March. Liability was admitted but the value of the claim was disputed. The claimant was injured in a motorcycle collision in October 2017 when a car pulled out from a minor road into his path. The claimant’s head went through the rear passenger window. He was thrown to the ground and his motorcycle ended up on top of him. He suffered physical and psychiatric injuries.
He recovered from the physical injuries within 12 months but the psychiatric injuries, including a specific phobia of riding motorcycles, had a long-lasting effect. He had to give up his job as an apprentice motorcycle mechanic. Medical experts agreed the pursuer suffered an adjustment disorder and ongoing phobia of riding motorcycles, but the defender’s medical expert reviewed her position having seen social media posts. She maintained, from those posts of the pursuer riding his motorcycle, the specific phobia had diminished by five months post-accident. The Sheriff accepted the pursuer should have been more open about where and when he was riding his motorcycle, but was not persuaded the pursuer had deliberately misled medical experts or fabricated his symptoms.
All claimants are under a duty to report an honest, truthful account of their injuries, both physical and psychological. Claimants should be aware that the content they post on social media may be scrutinised. However, it is worth considering that If any one of us were judged solely on our online social media persona, it would hardly be reflective of who we truly are and the life we lead ‘behind the mask’.
Jodi Gordon is a Partner, Road Traffic Accident Law (Scotland) LLP