Jodi Gordon

For the most part, it will be ‘friends and family’ who are liking and commenting on photos and status updates. However, if you’re involved in a Personal Injury claim, the third-party insurers may also take a rather unwelcome interest in your content.

The simplicity of going onto social media platforms and searching for a claimant seems to be 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 of course entitled to make independent investigations into the veracity of any claim intimated. Vast sums of money are spent by the insurance industry investigating fraudulent claims. Instructing private investigators to put a claimant under surveillance is not uncommon but can be expensive. On the other hand, accessing a claimant’s social media profile is straight-forward and relatively inexpensive.

However, this is a worrying trend. There is a clear differentiation 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 both unfortunate and unacceptable that a negative stigma still surrounds mental health issues. Many cannot speak out for fear of being criticised and so hide behind the rosy picture they alone have painted on their social media pages.

Of course, there is a time and place for such investigation. For example, if a claimant reports a physical disability so significant that he or she can’t work and yet social media posts reveal video footage of the claimant on the ski slopes, then clearly that establishes an exaggeration of the extent of their injury. The flip side is the claimant who has suffered psychological trauma and 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’s social media profile alone. Whilst physical injuries can often be identified in photographs and x-rays, the psychological impact cannot and it is often masked with a smile.

In the case of Conway v Paton and Another, Sheriff Fife issued a Judgement on 30th March 2020. 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 an ongoing phobia of riding motorcycles, but the defender’s medical expert reviewed her position having seen social media posts. She maintained that 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 own motorcycle, but he was not persuaded that the pursuer had deliberately misled medical experts or fabricated his symptoms.

All claimants are under a duty to report an honest and truthful account of their injuries, both physical and psychological. Claimants should always be aware that the content they post on social media may well be scrutinised. However, it is worth considering that If any one of us were judged solely on our online social media persona, then it would hardly be reflective of who we truly are and the life we lead ‘behind the mask.’

Jodi Gordon is a partner at Road Traffic Accident Law (Scotland) LLP