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Vegas Facebook pictures ruled non-factor in ICBC damages award

DBM Law Blog

In 2009, a DBM client was the victim of soft-tissue injuries to her neck and upper back following the rear-ending of a vehicle that she was riding in as a passenger. In addition to suffering considerable pain, she required accommodation at her job, was precluded from participating in sports and social events that she formerly enjoyed and is now unsuited for many occupations. A key issue in the case concerned photos posted to her Facebook page. These photos were taken during a trip to Las Vegas that she went on with friends well after the accident. ICBC’s argument was that the photos undermined her credibility on the damages issue.

BC Supreme Court Justice Richard Goepel called the photos she had posted on her Facebook page a “non-factor in determining how much compensation she deserves for her injuries.” Justice Goepel noted that her injuries cause her significant pain and have affected all facets of her life. In making his findings, Justice Goepel added that the pictures were of limited usefulness given that she was seeking compensation for what she had lost, not what she could still do. As the judge put it, “The fact that [she] can spend a weekend with her friends in Las Vegas does not gainsay her evidence that she continues to suffer from the aftermath of the accident.” Justice Goepel further noted that she “should not be punished for trying to get on with her life and enjoying it the best she can regardless of the limitations imposed on her as a result of the accident.”

The issue of the admissibility and relevance of Facebook photos in personal injury disputes is becoming increasingly common. As the pervasiveness of social media increases, it is not surprising that the case law surrounding Facebook continues to grow. It is interesting to note, that Justice Goepel’s findings in regard to the photos gleaned off Facebook were mirrored by other judges in similar cases. For instance, in the 2010 BC Supreme Court case Cikojevic v. Timm, the defendant entered into evidence a large number of photographs copied from the Plaintiff’s Facebook page. Most of the photographs depicted the Plaintiff and her friends enjoying themselves on various social occasions. However, others were of a more physical nature and included images of the Plaintiff taking part in a 10-kilometer charity run and preparing to bungee jump.

Though some of the photos of the Plaintiff in Cikojevic v. Timm were of an extreme nature, and though it was noted that the Plaintiff showed “poor judgment” in pursuing physically intense activities, it was acknowledged that the photos of the Plaintiff existed within a wider context of recovery. Specifically, the judge’s findings indicated that the photos had to be understood in regard to the Plaintiff’s extroverted personality. The judge accepted that the Plaintiff, in this case, was purposefully trying to keep active in order to avoid the depression that she had been suffering since the time of her injury.

Other cases were similar in regard to their view that Facebook photos exist within a wider context and often one of recovery. Importantly, in most cases where the court decided in a Plaintiff’s favour, the photos did not directly contradict the Plaintiff’s specific claims to injury.

Read The Vancouver Sun Article.

Read the reported case.


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