PROVING THINGS 61: MORE ON SOCIAL MEDIA: FACEBOOK ENTRIES AND WITNESS CREDIBILITY
Facebook and social media play an increasingly important part in litigation. We have looked at several cases where social media has played a critical part in the assessment of witness credibility. Facebook played a part of the judgment today of Mr Justice Blake in Rathore -v- Bedford Hospitals NHS Trust  EWHC 863 (QB).
The claimant brought an action for clinical negligence. Liability was admitted. The key issue was causation – whether the negligence had a major effect on the claimant’s physical and mental health.
THE JUDGE’S ASSESSMENT ON CREDIBILITY: THE FACEBOOK PAGES
There were numerous factors in the judge’s assessment of credibility. Here we just look at the references to Facbook
The defendant points to inconsistencies between: her accounts to professionals and many of the events recorded in a personal diary that she kept for the period 2006 to 2008; the posts made by her on her Facebook page; what she was telling her employer were the reasons for her absence form work; what she was telling Bedford Social Services in August 2009 who were making enquiries as to the well-being of her children; what she was telling a Dr Manjure who took a history from her in the context of a claim for damages resulting from the 2011 RTA…
The claimant’s Facebook page was accessed by Natasha Rutter on behalf of the defendant on 23 February 2016 and she made a statement exhibiting posts back to August 2009. I recognise that reliance on individual posts showing the claimant in glamorous clothing, attending social events with others, including her husband, should be treated with considerable caution. She has explained in her witness statement in reply and her oral evidence that from the onset of the pain in the winter of 2005, she felt the need to project to her family and friends an image of the dynamic active person she used to be. For similar reasons, she made an effort to attend the numerous social gatherings that are part of social life of two extended Sikh families living in east central England. It is also perfectly understandable why she would want to make an effort to be with her two children as they grew up and go on outings together. I accept that some of these factors may explain her appearance on any given post.
Equally, I accept that there is a need for caution in how to assess her diaries, apparently written from January 2006 before any thought of litigation could have occurred. At the earlier part there are regular entries; gaps come later. The fact that a stressful or painful experience is not recorded does not of itself mean that it did not happen, although the diary does contain numerous entries about pain. The fact that the claimant attended social events with her friends and extended family, sometimes travelling considerable distances to do so, does not itself mean that she was pain free or did not pay a pain penalty the next day. Isolated entries have limited significance in forming a view as to the reliability of her evidence.
There are numerous Facebook posts in 2011 of the claimant looking very glamorous with elaborate hair, make up and Indian dress. I appreciate that some of these photographs may have been from earlier occasions as one or two were claimed to be and that the claimant’s appearance is important to her self-image. A particularly glamorous picture of the claimant posted 23 April 2014 excited an exchange of admiring comments about the claimant’s hair to which she ‘it’s just layers, I did it myself’. In cross examination she explained that she was trained as a make-up artist but ‘did it myself’ just meant did not go to hairdressing saloon and Amo did the hair. I do not accept that answer as an honest one.
On 7 June 2014 there was a post from Legoland Windsor, and later at Crown Plaza Beaconsfield. The caption was a lovely day out with the family. In cross examination the claimant said that she was making an effort for the children. She did walk around a lot but her sister was there to help if it all became too much. I accept the defendant’s point that it is difficult to reconcile the prospect of her undertaking such an expedition at all with the picture in the DLA form or the claimant’s account of her limited mobility given to Mrs Gooch in 2014.
Although no single entry or photograph presents a knockout blow to the claimant’s credibility, and I take into account that in Facebook the claimant may be presenting a positive image of herself, I am satisfied that her social life and her mobility was considerably greater than she claimed for the purposes of the present case and the DLA application. Her unreliability on these issues is not a problem of recollection of the trajectory of her illness as seen through the spectrum of someone with a psychiatric condition, rather she has given exaggerated or untruthful accounts of her social life at a time when she claims to have undergone a significant deterioration in her condition and was making a number of different claims for compensation…
The experts made opposing observations on the relevance of the Facebook and diary entries to their opinions, whilst recognising that these were ultimately matters of evaluation by the court. Dr Valentine was concerned that the material raised veracity issues and in particular noted a smiling Facebook post from Nando’s with her husband on 7 August 2014, the same day as his examination of the claimant. Although she would needed to eat something that day he would not have predicted the activity recorded after seeing her presentation with severe and disabling pain and her account of her relationship with her husband. Her claim that she does not go anywhere unless she has to is undermined by the Facebook material and does not support a genuine presentation at the time of her examination. He also noted her ability to pick up a form spontaneously that was documented by Dr Master, four months later.
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RELATED POSTS: THE PROVING THINGS SERIES
- Proving things 1: Civil Evidence Act notices will not cut it
- Proving things 2: evidence to support a claim for damages must be pitch perfect.
- Proving things 3: the complete absence of evidence means the court will not speculate
- Proving things 4: Witnesses who just aren’t there.
- Proving things 5: witness statements and failing on causation.
- Proving things 6: “That’s what I always do” & proving causation.
- Proving things 7: If you don’t prove a loss you don’t get an order.
- Proving things 8: a defendant must prove that a failure to wear a seatbelt made a difference.
- Proving things 9: the role of experts
- Proving things 10: “He said, she said”: the difficulties of recollection.
- Proving things 11: Lies, damn lies and…
- Proving things 12: That oral contract is not worth the paper its written on.
- Proving things 13: Loss, there was no loss.
- Proving things 14: proving mitigation of loss
- Proving things 15: damages and evidence: going back to College
- Proving things 16: if you don’t prove it you don’t get it.
- Proving things 17: Heads of damage that were “entirely bogus”
- Proving things 18: Damages; Car hire; Proof & Summary Judgment
- Proving things 19: prove service or you could be caught out.
- Proving things 20: allegations of improper conduct have to be prove
- Proving things 21: when the whole process of investigation is flawed
- Proving things 22: damages, mitigation part 36 (and bundles).
- Proving things 23: serving important evidence late
- Proving things 24: Damages & the “But for test”: when it gets really complexProving things 24: Damages & the “But for test”: when it gets really complex
- Proving things 25: Attempts to smuggle in witness statements do not help (and carry no weight).
- Proving things 26: distinguishing between what you can remember and what you now think you did.
- Proving things 27: Burdens of proof, hearsay evidence and… attempted murder.
- Proving things 28: make unwarranted personal attacks and use a “mud-slinging” expert: that always ends well.
- Proving things 29: Make sure the witness evidence deals with the relevant issues
- Proving things 30: Office Gossip Proves Nothing: The importance of the source of information and belief.
- Proving things 31: witnesses tend to remember what they want to remember.
- Proving things 32: Damages claim struck out as unsustainable: application to amend refused.
- Proving things 33: causation and the burden of proof in claims against solicitors.
- Proving things 34: There is no primer for scuttlers: when your ship doesn’t come in.
- Proving things 35: Reconstruction, documents & memory.
- Proving things 36: credibility and contemporaneous documents.
- Proving things 37: An approach to damages that was “fundamentally deficient throughout”.
- Proving things 38: Proving inability to pay on a security for costs application.
- Proving things 39: You can spend £10 million in costs and still not prove your case.
- Proving things 40: No evidence – no loss.
- Proving things 41: Proving damages – you are not going to get a second bite of the cherry.
- Proving things 42: silence does not prove inducement.
- Proving things 43: How the Court decides: a Primer.
- Proving things 44: Findings of Fact, Walter Mitty and Witness Training.
- Proving things 45: If you can’t prove loss the defendant is going to get summary judgment.
- Proving things 46: Late theories advanced by experts rarely help.
- Proving things 47: Fire in the loft: it wasn’t the mouse man at all.
- Proving things 48: valves, floods, models and causation.
- Proving things 49: it is difficult to prove damages when the opinion evidence in your witness statement has been struck out.
- Proving things 50: to prove breach of contract you first have to prove that there was a contract.
- Proving things 51: No evidence of loss – no damages
- Proving things 52: Solicitor’s negligence action fails on all counts: no negligence and no loss.
- Proving things 53: dishonesty some of the times doesn’t mean dishonesty all of the time.
- Proving things 54: getting £2 in damages after claiming £15 million.
- Proving things 55: I’ll say it again: No evidence – no damages.
- Proving things 56: A judge will not speculate when things could have been proven.
- Proving things 57: Lease said soonest mended: claim for substantial damages fails (and guess the reason)
- Proving things 58: Failure to prove causation leads to award of nominal damages.
- Proving things 59: To get special damages you have to plead them and prove them.
- Proving things 60: Putting seaweed out of the window and the judge who was even-handedly offensive