5 July 2017 by and Dispute Resolution Alert

Facebook posts may come back to bite you

With the advancement of modern technology, insurers are finding new ways of mitigating their losses in respect of claims by policyholders, including reference to Facebook posts in evidence to challenge the credibility of a version.

In the English case Satveer Rathore vs Bedford Hospitals NHS Trust 2017 All ER (D) 142 (Apr) (2017) EWHC 863 (QB), the plaintiff claimed damages from the defendant for failing to inform the plaintiff timeously that she suffered from a sexually transmitted infection (STI).

The plaintiff gave birth to her second child in the Bedford Hospital during September 2005 and was subsequently discharged. She returned to hospital a month later suffering from post-partum bleeding and various other complaints. Tests were then conducted which revealed that the plaintiff was suffering from chlamydia, which would have been treatable by administering antibiotics. However, the hospital failed to inform the plaintiff of her condition which resulted in the plaintiff only being treated a year later.

The plaintiff claimed that she had suffered damages between 2005 to the date of the trial that commenced on 25 October 2016 as a result of the defendant’s failure to inform her of her condition. The defendant accepted that the failure to inform the plaintiff and to ensure that both she and her husband received appropriate treatment was a breach of its duty of care.

The defendant alleged that a significant portion of the plaintiff’s claim related to injuries suffered after the chlamydia had been detected and treated. The determination before the court was, among other things, whether the failure to treat, alternatively, alert the client of her condition for a year had resulted in the plaintiff suffering damages, and if so, to what extent.

At the trial from October 2016 to January 2017, the plaintiff arrived in court in a wheel chair and a covering blanket and needed the assistance of her husband.

One of the aspects considered by the court in assessing the plaintiff’s damages, was the plaintiff’s Facebook posts. In challenging the credibility of the plaintiff’s evidence, the defendant, among other things, lead evidence obtained from the plaintiff’s Facebook posts which depicted her living life in an ordinary manner, contradicting the plaintiff’s version (for example, playing badminton, attending Zumba exercise class, going for walks with her children and attending theme parks).

To conclude, the court held that the defendant’s negligence had only caused the plaintiff injury, loss and damage during the period 2005 to 2009. The court stated that one must tread carefully when considering Facebook evidence. However, it is clear that the court did take cognisance of the Facebook evidence, although it did not rely exclusively on such evidence.

The trend of using social media in investigating claims has gained support in the domestic insurance market in that insurers are relying on information posted on publically accessible social media accounts. It is clear that insurance companies will increasingly use social media to consider the veracity of claims.

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