Injury victims are often utilizing Facebook and other social network sites. They should be aware that in prosecuting any claim, the Defendants and their insurance companies will most certainly conduct searches on the Internet to find out what photographs and statements are made on Facebook. These statements will undoubtedly be used against you by Defendants. Pictures often show the injured victim in their best light without showing the consequences of pain and disability suffered from the injury.Clients should always disclose to their lawyer immediately at the outset of the file any Facebook or social media sites. There is a duty to produce the information and photographs on these sites to defence counsel. Caution should therefore be used. Clients can restrict access to their Facebook sites which will prevent searches by Defence counsel and insurance companies. However, there is a positive duty under the Rules of Court to produce all relevant documents which may include Facebook entries. Caution should also be exercised when posting pictures and statements on other people’s sites. These may come up in a search of the Internet.
While Courts have certainly recognized that injury victims on Facebook are using puffery or exaggeration to depict themselves in a positive light (DEWAARD vs Capture the Flag Indoor Ltd. 2010 AB QB 571), a Jury or Judge may find that the Facebook pictures and description are not consistent with the evidence of injury a victim gives at Trial. While the Supreme Court of Alberta said:
“I am prepared to accept that Facebook profiles may contain an overly positive prospective regarding one’s abilities and interests or a certain amount of puffery . . .”
The Court accepted that the injury victim was suffering and was able to do less in terms of activity. The Court on the other hand may compare the injured victim’s description of injuries with the photographs on Facebook and find that the Plaintiff is exaggerating or malingering. For example, in Kourtesis vs Jouris a Jury found that Facebook photographs showed the Plaintiff dancing, socializing and behaving in a manner inconsistent with the evidence given at Trial (there were 240 photographs of such activity). The Court found that the Plaintiff’s loss of enjoyment of life and pain and suffering were much less than originally presented and awarded a low amount of damages.
An injury victim must therefore be very cautious to balance what they are putting on their site – if they are going to use one – with their actual level of disability. The Courts (in Guthrie vs Narayan-2012 BCSC 734) have confirmed than an injured victim will not be punished for getting on with their life. In that case, an injured victim had published photographs of her trip to Las Vegas but the Court found in any event she had been candid about her injuries and that she could actually do certain things. The Court therefore found that she had suffered a reduction in her ability and enjoyment of life and awarded damages accordingly.
As an injured victim you need to keep in mind that you have a positive obligation to disclose all documents. Consequently although you may wish to be positive and cheerful on Facebook, exaggeration of your abilities can come back to haunt you.
Nicholson Gluckstein Lawyers