Lessons from the Maroochydore District Court

DATE PUBLISHED: February 11, 2025

The value of forensic evidence gathering including social media evidence was central to the outcome in the decision of Jaksa Sweeny and QBE[1] delivered on 30 January 2025 by Judge Cash KC.

Background

Rear-end type collision on 25 March 2021 and liability admitted.
Plaintiff 24 years of age at MVA and worked as a nail technician.
Insurer admitted cervical spine injury but right shoulder injury denied.
Plaintiff returned to work about two months after the collision on reduced hours and duties until her work hours increased but then she resigned in February 2023 and began operating her own nail salon in Mooloolaba.
Allegations of continued shoulder and neck pain interfering with life and causing reduced capacity for work.
No radiological evidence to confirm any particular injury to the right shoulder such that proof of the right shoulder injury depended largely on the acceptance of the Plaintiff’s testimony.

The view from Point Cartwright

The first image was a photograph taken of the Plaintiff perched on a fence at Point Cartwright. The Plaintiff gave evidence that her partner had lifted her up onto the fence.
Ms Welshe, Occupational Therapist, gave evidence at the request of the insurer that irrespective of whether the Plaintiff climbed onto the fence herself or was lifted onto it, both ought to have provoked symptoms inconsistent with alleged disability.
The Plaintiff had called evidence from Ms Cox, Occupational Therapist, who accepted that climbing onto the fence would have involved a tolerance above her clinical assessment and provoked pain from stabilizing whilst seated on the fence.
Ultimately the Court opined that either way the Plaintiff would not have got into this position without significant pain and therefore she was not suffering significant shoulder pain at the time of the photograph.

Gone fishing

The Court noted a second image of the Plaintiff on a boat holding a fish in August 2021. Her right arm was extended to the side with her upper arm horizontal at 90 degrees to her body and her forearm vertical. Her hand was slightly higher than her head. It was noted the fish was sizeable and extended down below the Plaintiff’s right elbow and that the Plaintiff was smiling in the photograph.
Ms Welshe maintained that such activity ought to have caused pain and was inconsistent with the Plaintiff’s reporting that she would avoid using her right arm out of fear of pain.
Ms Cox gave evidence that the lifting of the fish was an ‘…unusual activity for someone with [the Plaintiff’s] degree of… reported pain’.
His Honour found that it was more probable that the Plaintiff did not experience pain or difficulty in holding the fish and it was an activity that she did not seek to avoid because of pain which was inconsistent with her subsequent reports of shoulder pain and restriction.

Camping is fun

The Court noted photographs of the Plaintiff drinking from a can whilst camping in December 2021 and August 2022. Both occupational therapists gave evidence that holding a can in her hand and tilting her head back ought to have provoked pain. His Honour found that the Plaintiff’s ability to pose in this photograph without reported pain was inconsistent with her complaints of pain.

Dance like a psycho

The Court noted a photograph of the Plaintiff following a concert in Brisbane in February 2023. The Court noted the post was accompanied by a caption that the Plaintiff had ‘…had a million Yager bombs, feet all blistered up from dancing like a psycho…’.
His Honour essentially found that social media may not always reflect the objective truth of a situation and can reflect exaggeration.

Christmas party shenanigans

The Court noted a video of the Plaintiff at a staff Christmas party in December 2023 which showed her drinking shots using her right arm but more impressively performing the splits without any hindrance and whilst her right arm was under load.
The Court also noted a video of the Plaintiff throwing her head back whilst dancing with a mop without any discomfort. The Plaintiff’s evidence was that she picked up the mop because a margarita had been spilt but this was found to be unlikely and:

[55] …casts a shadow over the reliability of her evidence. Ms Jaska’s evidence involves such distortion of what can be seen on the video – even allowing for the fact the video has been sped up – that I am concerned that she has, consciously or unconsciously, reconstructed events to put her actions in a more favorable way.

Cautious consideration of social media

Importantly, the Court made this observation as to the significance of social media evidence:

[59] I am conscious that uploads to social media do not always represent reality, and that photographs and videos are only a snapshot or a moment in time. It is appropriate to be cautious in drawing conclusions from such evidence. But in this case the evidence is not one or two images, it is a series of images and videos over time from which a conclusion may be more comfortably drawn.

Cash DCJ accepted that an injured person may have ‘good days and bad days’ and that the trajectory of an injury was ‘…not always linear’. However, His Honour found that the weight of the social media evidence led to a conclusion that it was more probable than not that the Plaintiff had not proven the extent of her injuries.

The interplay between social media and contemporaneous medical records

The Court found the Plaintiff’s allegation that her symptoms resulted in leaving work early was inconsistent with her then going out to dinner at a tavern. The Court found that it was improbable that a person experiencing significant pain which interrupted their capacity for work would then go out to dinner rather than rest at home.
The medical records identified that the Plaintiff attended upon a GP about sensitive relationship matters but denied this in her evidence. Under re-examination she admitted those conversations but could not give an explanation for her inconsistent evidence. The Court noted that the Plaintiff may not have wished to admit such conversations occurred out of a sense of embarrassment, however, ultimately it was ‘…troubling that Ms Jaksa’s first instinct was to be untruthful’ and that embarrassment was an insufficient excuse for less than frank evidence.

What about the orthopedic surgeons?

Dr Byrne placed little weight in the social media evidence but the Court was critical of the manner in which he conducted his examination (no inclinometer) and so preferred the evidence of Dr Fitzpatrick which was to the effect there were minimal if any ongoing restrictionsThe Court was not satisfied that the Plaintiff suffered from constant neck pain radiating into her right shoulder and arm such that the damages had to be assessed having regard to the admitted neck injury only.
The Court found the Plaintiff’s allegation that her symptoms resulted in leaving work early was inconsistent with her then going out to dinner at a tavern. The Court found that it was improbable that a person experiencing significant pain which interrupted their capacity for work would then go out to dinner rather than rest at home.

Quantum

General damages - assessed under a minor cervical spine injury at an ISV of 5 ($8,100.00).
Past economic loss - assessed on the basis that the Plaintiff had an earning capacity of between $720.00 - $760.00 net per week at the time of the accident and having regard to the unpredictability of the beauty industry in conjunction with the Court’s concerns about the Plaintiff’s reliability - global basis only at $50,000.00.
Past superannuation - was noted to be difficult to calculate because of the Plaintiff’s combination of employment and self-employment. His Honour apportioned assessed past loss of superannuation at 10.5% on half.
Future economic loss - the Court noted again its concerns about the Plaintiff’s reliability and allowed a global sum of $75,000.00.
Past special damages were agreed at $3,345.27.
Past commercial care - allowed at six hours per week for the first eight weeks said to reflect commercial assistance provided by her partner’s mother at a commercial rate of $50.00 per hour. There was no mention of the application of section 59 of the CLA presumably because the Court accepted that the care was provided on a commercial basis rather than a gratuitous basis.
Future commercial services and treatment- allowed a modest global sum of $2,000.00.
Ultimately the Court awarded damages of $148,826.49.
We understand that the Judgement fell between the offers.

Lessons

1
There is forensic and strategic value for insurers to gather social media evidence, however, social media evidence on its own may be insufficient and it must be both cross referenced against contemporaneous medical records and where necessary provided to your IME experts.
2
Be mindful that social media evidence may not always mean what you think it does. There may be other reasonable explanations for the evidence and Courts continue to treat it with caution unless it paints a picture of overwhelming inconsistency with alleged disability.
3
Social media evidence may not be fatal to allowances for past and future economic loss.