From selfies to surveillance: how an injured person’s digital footprint could make or break their personal injury claim
25 June 2026
Social media platforms like TikTok, Instagram and Facebook are now woven into everyday use. They give people a constant window to share snapshots of their lives, whether that’s dancing at a music festival, travelling overseas, playing sport on the weekend, or hitting a new personal best at the gym. But when someone has commenced a personal injury claim, seemingly harmless posts can have unintended consequences for the case. What is shared online can be scrutinised, misinterpreted, and used in ways that may ultimately undermine an injured person’s claim.
Insurers and defence lawyers routinely review social media activity and use surveillance operatives to gather evidence to challenge the credibility of injured people, arguing that this evidence may contradict their evidence, or their pleaded case, as to the extent of their injury-related disability.
As surveillance becomes more sophisticated and digital footprints more permanent, is it ‘fair game’ or an invasion of privacy for insurers and defence lawyers to keep tabs on an injured person?
As a personal injury lawyer, clients frequently ask me whether social media posts or surveillance footage can be used against them in court, and whether one moment caught on camera could end up sinking their claim.
Hand over the receipts (yes, even the old posts …)
There are particular disclosure obligations for claimants under the different legislations in Queensland. For personal injury claims, this can include section 22 of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA), section 279 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA), and section 45 of the Motor Accident Insurance Act 1994 (Qld) (MAIA).
The other party may not always be entitled to a full response to every request for information or disclosure of documents, as at times, the request is outside the scope of the legislation.
However, with that said, the courts have taken a broad view on what sort of digital media is disclosable. In Riggs v Germanotta and QBE [2003] QSC (Cullinane J, 17 October 2003), the plaintiff resisted disclosure of her wedding video on the basis that this request was intrusive and unrelated to her claim. Cullinane J, however, ordered the disclosure of the wedding video on the basis that it was likely to be relevant to the assessment of damages. His Honour had not viewed the video, but said at paragraph [22]:
‘The reality is that the institution of proceedings for personal injuries carries with it necessarily an examination of matters personal to the plaintiff.’
It is now well established by the courts that social media posts are disclosable and can be admissible as evidence at a trial. For example, Atkinson J remarked during an interlocutory application for the disclosure of Facebook material in Digby v Compass Institute Inc & Anor [2015] QSC 308:
‘Facebook is now the equivalent of an ongoing diary of social events … it’s certainly discoverable, isn’t it? … it’s a bit like disclosing a diary. When you write a diary you don’t write it to be disclosed in Court proceedings, or expecting it to be disclosed, but in these circumstances it will be [disclosable].’[1]
In that case, Atkinson J ordered that the plaintiff either provide copies of all her Facebook content to the other party or permit access to the account by accepting a ‘friend request’ for a period of time. Although the Digby case refers to Facebook material, this can logically extend to any social media platform including Instagram, Tik Tok, and even activities on Strava.
Caught on camera: does surveillance have to be disclosed?
Insurers and defence lawyers can arrange for surveillance operatives to capture footage or take photographs of an injured person when it is done for the purpose of gathering evidence to assist in defence of the claim. As long as the surveillance is conducted in a lawful manner (ie, in public settings where there is no reasonable expectation of privacy or without harassment), it will generally be admissible in court.
In Queensland, the Motor Accident Insurance Commission (MAIC) has tried to regulate the conduct of surveillance operatives in motor vehicle accident claims by producing the Claims Management Standards (Claims Management Standard 510: Surveillance [CMS 510]) (the Standards). The Standards permit an insurer to conduct surveillance of an injured person when either of, or all of the following apply:
(a) based on available evidence, the insurer reasonably suspects the claimant is exhibiting or providing misleading information or documents in relation to a claim; or
(b) based on available evidence, the insurer reasonably suspects that the claim is inconsistent with information or documents in the insurer’s possession regarding the circumstances of the accident or medical evidence; or
(c) based on available evidence, the insurer has reasonable grounds to suspect a claimant of fraud.
The Standards make it clear that there must be a clear purpose for obtaining the surveillance and the surveillance is likely to gather the information required. Additionally, the Standards provide that surveillance must only be conducted in or from places regarded as public places or where the claimant, whilst on private property, can be observed by members of the public going about their ordinary day-to-day activities.
As a general rule, when a party obtains surveillance material it will be disclosable.
Disclosure is intended to promote fairness and transparency, ensuring that both parties understand the evidence that may be relied upon at trial. An exception may arise, however, where the party holding the surveillance has a reasonable basis to suspect fraud. In those circumstances, disclosure can sometimes be delayed until after cross examination at trial, to avoid alerting a claimant to the existence of the surveillance and thereby undermining further investigations.
In the pre-court proceedings of a motor vehicle claim, if an insurer has reasonable grounds to suspect an injured person of fraud (see section 48(3) of the MAIA), and the disclosure of the material would alert the injured person to that discovery, then the insurer has the right to withhold the information.
In workers’ compensation claims, an insurer has an obligation to report certain offences to the Workers’ Compensation Regulator (the Regulator) where there is a ‘reasonable belief’ that a worker or employer is defrauding or attempting to defraud the insurer or has provided false and misleading information (whether a statement or a document).
In public liability claims, if there are reasonable grounds to suspect fraud, the respondent may apply ex parte to the court for approval to withhold the disclosure (see section 30(3) of the PIPA).
Once proceedings have commenced and the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) apply, then the parties ordinarily have a duty of disclosure pursuant to Rule 211. However, the party can make an ex parte application to the court seeking an order pursuant to Rule 223 of the UCPR whereby the delivery, production, or inspection of any of the documents or surveillance footage is not required and the party is relieved of their obligations to disclose the material (Rule 224) or plead any matter revealing the existence of the material (Rule 367(1)). In effect, this can allow the party to ‘surprise’ the plaintiff during cross-examination at any trial of the matter.
Surveillance operatives aren’t immune from scrutiny
In the recent case of Ardis-Phasey v Neal & Anor [2026] QDC 25, there was extensive discussion about surveillance material that had been tendered at trial. This case involved a plaintiff who was injured in a motor vehicle accident when he was 14 years old. The plaintiff sustained a lower back injury in the accident and had consistently complained of lower back pain since the accident to his treatment providers.
During the trial, he was cross-examined about his involvement in playing competitive soccer and rugby league after the accident, his gym workouts, and his ability to work. The compulsory third party insurer, Allianz Australia Insurance Limited, had also arranged for the plaintiff to be filmed in a covert surveillance operation.
Judge Porter was critical of the covert surveillance operatives who filmed the plaintiff attending to his work duties at Costco (his employer) and in another shop where he was captured with a female friend.The operatives had not obtained consent from the occupants of either premises. As a result, Porter J held that there was a strong argument that filming the plaintiff without the consent of the occupants was an unlawful trespass. There was an inference that the employer would have refused permission to film the plaintiff at work, given the strong reaction to the footage once discovered. The plaintiff gave evidence that his employer wanted to prevent the surveillance operative from ever returning to the premises.
Secondly, Porter J was critical of the surveillance operatives filming a young woman with the plaintiff in a shop. His Honour considered it ‘immodest’ when she had nothing to do with the case.
In terms of credibility of the plaintiff, Porter J determined that the plaintiff was an honest and reliable witness. His Honour said that although the plaintiff had persistent pain and discomfort in his lower back, he did not let it stop him doing anything he wished to do, that he could manage to do. His Honour remarked that the plaintiff had, at times, underestimated the limitations of his lower back or simply ignored the limitations out of ‘bravado’. As a consequence, he would suffer from increased pain after doing these activities such as when he attempted to squat 115 kg of weights and ‘paid a price’ for it afterwards. However, it was held that a young man behaving in that way was unremarkable. The plaintiff appeared to have lived his life as fully as possible. Judge Porter said he ‘would expect nothing less from him’ and the plaintiff simply tried to ‘get on with things’.
This case may mark a shift toward stricter scrutiny of surveillance operatives’ conduct, particularly when assessing if the footage has been unlawfully obtained, such as through entry onto private property.
Digital evidence under judicial scrutiny
In addition to the Ardis-Phasey decision, other recent Queensland decisions show just how influential social media posts and surveillance footage can be once a personal injury claim reaches the steps of the court.
Judges are increasingly being asked to assess photos and videos taken outside the clinical setting, often years after an injury is sustained, and to decide whether these moments undermine an injured person’s credibility. The following two cases provide a practical illustration of how digital media is being used in personal injury litigation and the serious consequences it can have for a claim.
In Jaksa v Sweeny & Anor [2025] QDC 2, the plaintiff was involved in a motor vehicle accident. Her vehicle was stationary in heavy traffic when the first defendant collided with the rear of her vehicle.The plaintiff alleged that she sustained a neck injury and a right shoulder injury. There was a dispute between the parties about the extent of her injuries. The compulsory third party insurer, QBE Insurance (Australia) Limited (the insurer), tendered a range of social media photos and videos of the plaintiff alleging that the plaintiff was able to move her right arm in a matter which was inconsistent with the shoulder injury she claimed.
For example, one of the photos depicted the plaintiff holding a ‘sizeable’ fish which appeared to have been freshly caught. Her right arm was extended to the side with her upper arm horizontal at 90 degrees to her body and her hand was slightly higher than her head. The plaintiff explained that someone else had caught the fish and she had simply posed with the fish for a photograph, holding it for no more than 10 seconds. The occupational therapist called to give evidence by the insurer opined that this range of movement in lifting and posing with the fish would have caused pain and was inconsistent with the plaintiff’s reporting. Judge Cash determined that this photograph and the activity depicted, was inconsistent with the plaintiff’s reports of the extent and severity of pain in her shoulder and arm, causing doubt to the reliability of her evidence.
Additionally, a video of the plaintiff dancing at a staff Christmas party was tendered at the trial. The footage depicted the plaintiff performing the splits without any apparent hindrance or discomfort. The plaintiff attributed her ability to do the splits to many years of gymnastics and said she felt no symptoms in her neck or arm when she performed the manoeuvre. His Honour held that this activity was inconsistent with an injury to the neck and shoulder.
Judge Cash further stated at paragraph [59]:
‘I am conscious that uploads to social media do not always represent reality, and that photographs and videos are only a snapshot or a moment in time. It is appropriate to be cautious in drawing conclusions from such evidence. But in this case the evidence is not one or two images. It is a series of images and videos over time from which a conclusion may be more comfortably drawn.’
Taken collectively, his Honour was not satisfied that the plaintiff had proven the pleaded right shoulder injury. As a result, her entitlement to damages was assessed only having regard to her neck injury.
Another example can be observed in the case of Bullock v Wraight & Anor [2025] QDC 85. Here again, there was a lot of commentary on social media evidence and surveillance material tendered at trial. The compulsory third party insurer, AAI Limited t/as Suncorp Insurance, made submissions to the Court that the surveillance footage showed the plaintiff with a full range of movement and that consequently her neck injury had resolved.
After considering the footage and the opinions of the medical experts, Balić J determined that the plaintiff had amplified the extent of her ongoing symptoms, though found that she was generally a witness of truth. As a result, the plaintiff’s claim was still successful but only a modest amount of damages was awarded.
The case law suggests that social media posts or surveillance material can potentially have a detrimental impact on an injured person’s credibility, if a court determines a person has been inconsistent or dishonest in reporting their symptoms and limitations. Even small discrepancies can be enough to prove that a person has exaggerated or even fabricated their injuries, and this can have a significant impact on a claim and can even result in criminal charges for fraud.
It is often said that a picture paints a thousand words, however, that is not always the case. Context is absolutely crucial when social media content or surveillance material is being weaponised. A short video clip or a photograph can easily give a misleading impression if viewed in isolation. Without the full picture, this evidence can be damaging. That is why it is essential for the injured person to provide a reasoned explanation on what was actually happening at the time to ensure the evidence is interpreted accurately.
The digital age of litigation
The use of social media content and surveillance are no longer rare occurrences in personal injury claims – they are front and centre. What was once shared casually with friends or followers can now be scrutinised in a courtroom and tested against medical evidence. As recent case law suggests, the judiciary are increasingly willing to rely on digital media to assess credibility, consistency and, ultimately, the truthfulness of an injured person’s claim.
That does not mean social media posts or surveillance footage automatically tells the full story. Courts remain cautious, recognising that photos and videos capture only fleeting moments and rarely reflect the pain, limitations and ongoing difficulties experienced behind closed doors. But when digital evidence appears inconsistent with what has been pleaded or reported, it can seriously undermine a claim, sometimes dramatically reducing damages, and in extreme cases exposing an injured person to allegations of fraud.
The reality is simple: if you have a personal injury claim, you must assume you are being watched, both online and offline. Understanding how social media and surveillance evidence can be obtained, disclosed and used is essential, as a single post, clip or piece of surveillance footage may undo an otherwise meritorious claim.
The ALA thanks Shelby Bennett for this contribution.
This is an edited version of an article first published by Travis Schultz & Partners.
The views and opinions expressed in this article are the authors and do not necessarily represent the views and opinions of the Australian Lawyers Alliance.
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[1] Transcript of Proceedings, Digby v Compass Institute Inc & Anor (Supreme Court of Queensland, 3490/2013, Atkinson J, Day 1 and Day 2) at [20]-[25] and [40].