Assessing damages in an MVA claim – psychological injuries in a social media world Assessing damages in an MVA claim – psychological injuries in a social media world

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Assessing damages in an MVA claim – psychological injuries in a social media world

3 March 2020 | General Insurance

An insight into the assessment of damages for complex chronic pain syndrome and psychological injuries where social media paints a very different picture of the claimant.

In Issue

  • Whether the plaintiff’s psychological injuries were as severe and debilitating as claimed in light of surveillance footage obtained by the defendant and social media posts made by the plaintiff and his family.
  • The appropriate assessment of damages for apparently mild physical injuries that ultimately progressed into complex chronic pain syndrome and psychological injuries in a previously healthy 20-year-old man.

The background

The plaintiff claimed damages for injuries he suffered in a motor vehicle accident (MVA) on 4 January 2014 while a passenger in a vehicle driven by his father, which rolled several times after he lost control of the car. Liability was admitted by the compulsory third party insurer (defendant) and the trial focused on an assessment of the plaintiff’s entitlement to damages in circumstances where surveillance and social media appeared to portray a more much active plaintiff than displayed during trial.

The decision at trial

The plaintiff and his family gave evidence that prior to the MVA, the plaintiff was a healthy and entrepreneurial young man who had recently commenced two businesses and was socially active amongst his community. Following the MVA, the plaintiff reacted extremely poorly, developing psychological restrictions that prevented him from working, undertaking self-care activities or engaging in any social or recreational pursuits. The picture presented was of a severely restricted young man requiring constant supervision and care. The amount claimed was close to $3.5m in damages plus costs.

At trial, the defendant focused extensively on cross-examining the plaintiff and his family and friends in an attempt to challenge the plaintiff’s witnesses’ credibility. Much was made of a social media account allegedly set up and controlled for the plaintiff by his sisters which depicted a much more active version of the plaintiff than the evidence given. Similarly, the defendant relied heavily on surveillance footage which demonstrated the plaintiff had a greater capacity for work and recreational tasks than was claimed.

The court found that the medical evidence, while complex in terms of the plaintiff’s injuries, clearly demonstrated the plaintiff had suffered relatively minor physical soft tissue injuries in addition to an acquired brain injury (ABI). While the physical injuries resolved within 3-6 months, the ABI led to cognitive defects which were later subsumed by depression, anxiety and PTSD in addition to a Chronic Pain Disorder and Somatic Symptom Disorder. The court rejected the defendant’s argument about the social media account, accepting the family’s evidence that it was set up to put a positive spin on his activities and promote his welfare.  The surveillance footage, while demonstrative of a greater capacity than claimed, was not denied by the plaintiff and the limited footage in comparison to the hours expended under surveillance did not establish that the claimant was particularly active. However, the claimed level of disability was not accepted by the court, who awarded damages of $883,123.00 plus costs.

Implications for you

The case stands as a warning on the reliance on evidence gathered from social media and surveillance footage in the absence of other direct evidence. It further establishes courts’ willingness to accept the impact of psychological injuries and chronic pain disorders (even where physical injuries are relatively minor) and award substantial damages. While defendant insurers are often sceptical of such claims, this judgment highlights the importance of dealing with psychological injuries and Chronic Pain Disorders with the same objectivity as physical injuries.

George Varvatselis by his tutor Suzanna Varvatselis v William Varvatselis [2020] NSWDC 13 

Author

Emma Pilkington

Emma Pilkington

Senior Associate