FUNDAMENTAL DISHONESTY: SOCIAL MEDIA, SURVEILLANCE EVIDENCE AND A LONG WALK

I am grateful to Legal Executive Vanessa Brooks for sending me a copy of the judgment of HHJ Harrison in Thomas -v- Owen (21st March 2023, Cardiff County Court).  It is another example of social media playing a part in the collation of evidence.  The judge found that the claimant’s account to experts showed discrepancies with social media posts and surveillance evidence. A copy of the case is available here Thomas Approved Judgment

THE CASE

The claimant brought an action for damages for personal injury following a road traffic accident.  Liability was admitted.   There was a claim for past loss of earnings of £124,444.86 and future loss of earnings of £69,000. There were also claims for past and future care.

THE ABSENCE OF A PHYSICAL CAUSE FOR THE DISABILITY

The claimant complained of ongoing symptoms. However there was no physical explanation for these symptoms.

VIDEO EVIDENCE AND SOCIAL MEDIA EVIDENCE

From early 2018 the defendant arranged surveillance evidence of the claimant.  These showed the claimant walking to community exercise classes, apparently normally; playing in the park with her nephew and shopping.  Social media showed that she had travelled abroad. Her “strava” exercise app showed her walking each day, not particularly slowly.

THE FOUR WATERFALLS WORK

The claimant put on social media a blog relating to doing a walk in the Brecon Beacons.  This also said she needed a rest day following the walk.  The walk is discussed in detail in the judgment.  It is described, in places, as “Hard” and “Strenuous” . The claimant elected to take an optional strenuous detour and navigate across a very rough section to a slippery path behind the waterfall.

The defendant made an application for disclosure of social media posts that were behind a privacy setting. This was granted and the defendant given permission to rely on an up to date statement dealing with social media and surveillance.

THE MEDICAL EVIDENCE

The orthopaedic surgeons and pain experts could not offer any physical explanation for the ongoing symptoms.  The claimant’s case rested on psychiatric evidence.  This, in turn, rested to a large extent on the claimant’s credibility.

THE CLAIMANT’S CREDIBILITY

The judge found that:

• There was a significant difference between the description given as to symptoms to the DWP in 2017 and 2018 to that recorded in social media and surveillance evidence at the time.
• There were discrepancies in the account given to the doctors and that revealed in social media.  There was no explanation for the discrepancy and it undermined the claimant’s credibility.
• The “Four Waterfalls” Walk demanded an explanation.   The claimant proffered an explanation in her latest statement, but not prior to that.  The description given to the experts was that she suffered a significant general restriction, even on a good day. The judge held that “this is grossly inconsistent with a decision to undertake the Four Waterfalls Walk”.
• The claimant did not mention the walk at a subsequent PIP assessment.

THE FINDING OF FUNDAMENTAL DISHONESTY

The judge found that the defendant had established that the claimant was fundamentally dishonest.  She had not presented a truthful account of the symptoms to the medical experts in the case and others she had reported the symptoms to after the accident.

DAMAGES

The judge had to make a finding of the damages that would have been awarded. He found general damages of £4,500, loss of earnings of £5,101,75 and care of £317.00.