Case Note: Jaksa v Sweeny & Anor
Citation: [2025] QDC 2
Jurisdiction: Queensland District Court
Date: 30 January 2025
Decision Maker: Cash DCJ
Background
On 25 March 2021, Ms Jaksa was involved in a motor vehicle accident when her stationary vehicle was rear-ended by Mr Sweeny in heavy traffic. Liability for the accident was admitted by QBE Insurance.
The central issue before the court was the nature and extent of injuries allegedly sustained by Ms Jaksa, specifically whether she suffered a right shoulder injury in addition to a neck injury.
Injury Claims and Evidence
- Accepted Injury: Neck injury.
- Disputed Injury: Right shoulder injury.
Ms Jaksa reported severe and persistent pain in her right shoulder and arm, aggravated by physical activity. However, no objective medical evidence (e.g., imaging) supported the existence of a shoulder injury. The claim relied heavily on Ms Jaksa’s testimony.
Social Media Evidence
QBE challenged the credibility of Ms Jaksa’s claims based on various social media posts, including:
- Sitting on a fence holding two dogs.
- Holding a large fish with her right arm extended.
- Raising her right arm above her head in water.
- Wringing water from her hair.
- Drinking from a can with her right hand.
- Describing herself as “dancing like a psycho” after a concert.
- Dancing and bearing weight on her right arm at a staff party.
Some posts were deemed inconsequential, but others, supported by medico-legal opinion, undermined her claims of debilitating pain.
Expert Opinions
An occupational therapist concluded that the movements depicted in the posts were inconsistent with the reported symptoms. Ms Jaksa alleged bias due to the therapist’s refusal to confer with her legal team. The court rejected this claim, noting:
- Experts are not advocates and must assist the court impartially.
- Refusal to confer does not, in itself, prove bias.
- The therapist’s reasoning was clear and aligned in part with Ms Jaksa’s own expert.
Credibility Findings
The court found inconsistencies in Ms Jaksa’s testimony, particularly regarding the staff party video. Her description of events did not match the footage, casting doubt on her overall credibility. Additional inconsistencies unrelated to social media further weakened her case.
Legal Considerations on Social Media
The court acknowledged that social media may not reflect reality and that injury recovery is not always linear. However, the volume and nature of posts over time, combined with the lack of objective evidence and credibility concerns, led the court to conclude that Ms Jaksa had not proven her shoulder injury to the required standard.
Orthopaedic Evidence
Two orthopaedic surgeons assessed Ms Jaksa. The court preferred the opinion of the surgeon who used an inclinometer and conducted repeat testing, finding it more reliable.
Outcome
Damages were awarded solely for the accepted neck injury:
- ISV: 5
- Total Damages: Approximately $150,000, including allowances for economic loss, special damages, and commercial care.
- Costs: Awarded to Ms Jaksa