Social media evidence used by defendant to reduce claim for $20M damages to nominal sum.

In Issue

  • Whether surveillance and social media records were admissible to contradict the plaintiff’s account of disabilities

The Background

Yena Foong (the plaintiff) commenced proceedings against the defendants, seeking damages for physical and psychological injuries arising out of two motor vehicle accidents which occurred in March and September 2011 (the accidents). The plaintiff, who was self represented at the time of the trial, claimed $20M in damages. Breach of duty in relation to each accident was admitted.

Prior to the accidents, the plaintiff had been employed as a real estate agent. In 2009, the plaintiff was investigated with respect to trust account discrepancies arising from a sale of a property, and she subsequently lost her real estate licence.

The plaintiff was the subject of extensive surveillance footage which, along with her social media records, contradicted her claimed ongoing disabilities.

The Decision

The defendants sought to tender extracts from the plaintiff’s various social media accounts, to which the plaintiff objected. In considering the admissibility of such, the court emphasised that social media records are a valuable source of material, which are routinely tendered in civil and criminal proceedings. There was no need to warn an opponent of an intention to rely on it.

The court noted that there would need to be significant reasons for excluding material prepared by a party to litigation which directly contradicted sworn testimony in proceedings for damages for tortious wrongdoing. In this case, those significant reasons were not made out. The court found that the plaintiff’s social media posts indicated that her work, social and personal life appeared to be unrestricted by the accidents.

The court found that the medical evidence relied on by the plaintiff was of no assistance as the experts either uncritically accepted the plaintiff’s reports of disability and failed to consider the inconsistent background provided to them, or, the practitioners indicated that she was feigning her injuries. The plaintiff relied on an accountant’s report in relation to her economic loss claim, however the expert conceded he had not considered the Expert Code of Conduct and so the report was inadmissible. Tax return documents which had not been submitted to the ATO and appeared to have been prepared solely for the purpose of litigation were not admissible as business records.

As a result, the court considered that the plaintiff’s lack of credibility was overwhelming and awarded damages of $1,250 for each accident.

Implications for you

This case illustrates the weight given by the court to social media records, especially in personal injury matters where there is a dispute as to the ongoing disabilities. It also highlights the need for experts to critically examine the plaintiff’s reported injuries/disabilities, especially in the face of inconsistencies, and to consider the Expert Code of Conduct.

Foong v Ghaly; Foong v McLellan [2017] NSWDC 303