May 7, 2020

Plaintiff deletes Instagram posts, didn’t know he needed to tell the truth when giving evidence

Mr Kim took AAI Limited to Court for damages for injuries allegedly sustained as a result of not one but two motor vehicle accidents. His claim was dismissed and he was awarded nothing.[1]

Background

Mr Kim made two claims against AAI Limited for personal injuries sustained as a result of two separate motor vehicle accidents. He alleged that he had sustained neck, shoulder and back injuries. The Defendants denied that the accidents occurred as alleged or that Mr Kim suffered such injury or extent of injury as claimed.

Credit Issues

During the course of the Trial, there were a number of instances in which Mr Kim’s credit as a witness was called into question.

Multiple accidents: Pure coincidence or something more sinister?

Over a period of less than 4 years, Mr Kim had been involved in and made claims for damages for 5 separate motor vehicle accidents. In addition, in both accidents the subject of the claims against AAI Limited, the drivers of the ‘at fault’ vehicles were known to Mr Kim. Acting Magistrate Cull accepted the Plaintiff’s submission that these facts in and of themselves did not give cause for a finding of fraud. However, in conjunction with the credibility issues raised, it likely cast a shadow of doubt. 

Instagram posts: Here and gone

Over a period of six months, Mr Kim’s Instagram posts reduced from 595 to 231, as at the date of Trial. Mr Kim initially denied deleting any posts. When confronted with the deleted posts, Mr Kim sought to allege that they were taken pre-accident and used for promotional purposes. The Defendants argued that this demonstrated that Mr Kim had sought to destroy evidence which did not support his case.   

The deleted posts included both photographs and videos of Mr Kim engaging in weight resistance exercises and various other manoeuvers. The Defendants argued that they demonstrated a capacity in excess of that alleged by Mr Kim.

Gym attendances: skipped my memory

Mr Kim provided a Statutory Declaration, stating that he attended ‘Anytime Fitness – Hamilton Branch’. The difficulty was, the same day he signed that Statutory Declaration, he had also attended on ‘Snap Fitness’, a gym that he had attended some 994 times in the almost two years prior to signing that Statutory Declaration.

He also declared that he only attended the gym ‘once or twice a week’ to do ‘light exercises’. However, evidence demonstrated that the Plaintiff went to the gym on average 12 to 13 times per week and had lifted dumbbells that were 45-50kg each.

The truth

During cross-examination, Mr Kim indicated “…that he did not know that he was required to tell the whole truth when giving evidence”.[1] That would surely have been the final nail in the coffin for Mr Kim’s claim, with Acting Magistrate Cull likely left unsure as to what, if anything, Mr Kim had said in evidence was true.   

The parties’ positions

By day three of the Trial, Mr Kim had abandoned his claims for past and future economic loss and superannuation. He maintained a claim of $8,493.00, consisting only of general damages and past special damages.

The Defendants raised issue with Mr Kim’s credibility as a witness and submitted that Mr Kim should not be awarded anything.

Finding

Acting Magistrate Cull dismissed the Plaintiff’s claim, awarding $nil. In coming to his decision, Acting Magistrate Cull commented:-

   “…his exaggerated claims of symptoms, arbitrary reporting of income and attempted altering and withholding of evidence make it impossible for him to satisfy to this court, even on the balance, that he sustained injuries caused by the incidents the subject of this claim that caused any pain, suffering or loss of amenity.”[2]

What can we take away from this case?

In personal injury law, trials can be won and lost based upon the credibility of witnesses, particularly in relation to the star witness, the Plaintiff. If there is evidence to suggest that a Plaintiff’s credit should be called into question, their case can start to unravel. This case demonstrates how a trial can go pear shaped if a Plaintiff’s credit is torn to shreds.

Tips we can take away from this case are:-
  • Always check whether a Plaintiff has been involved in any other motor vehicle accidents or made any other claims for personal injuries. It may not mean anything, they may just be unlucky, but it will almost always be relevant to your claim;

  • Check to see whether the Plaintiff knows the driver of the vehicle at fault. It may not mean anything, but in conjunction with other factors, it may be worthwhile knowing when forming your position with respect to liability; and
  • Check Plaintiff social media pages at an early stage and keep checking. Plaintiff social media pages can be a goldmine of information.

 


[1] Kim v Han & Son & AAI Limited