April 13, 2017

Social Media and Personal Injury Claims

We live in a world where people are quick to hit “post.” It’s become a second nature. We share what we had for lunch, where we went yesterday, what we’re doing tomorrow. Nothing is off limits. What’s more, we tend to avoid posting the bad, and focus on posting the good. We splatter the internet with photographs of us smiling and at our best. We want our friends to think that our lives are exotic, adventurous, active, and happy.

So, what does this mean if you’ve been in a car accident and you have a personal injury claim?

 

The Reality

ICBC and Defence lawyers are aware of the sharing nature of our society. If you were injured in a car accident, ICBC has designated investigators to search out your online presence. This includes Facebook, Twitter, Instagram and your blog. It doesn’t take a special investigator to find you online; even a simple search on Google can reveal a lot about a person. They will scour the internet for anything that seemingly contradicts your injury claim.

 

What does this mean?

It matters what you post online.  Your Facebook posts can be used against you in your personal injury claim.

For example, in Neyman v Wouterse, 2013 BCSC 741 the 31-year-old Plaintiff was injured in a car accident in October of 2007. She testified at trial that she continued to have a driving phobia. She also said that she had to buy an automatic car in 2011 because the clutch on her standard aggravated her hip injury. In 2009 the Plaintiff had posted on her Facebook page about driving her mom’s standard transmission BMW late at night and at high speed. The Plaintiff had also made several posts on Facebook that suggested she was pursuing a strenuous work and school schedule after her car accident. As a result, the British Columbia Supreme Court concluded that this Plaintiff was “an unreliable historian.”

This is an extreme example. Here the Plaintiff’s testimony was directly at odds with her Facebook posts. But this isn’t always the case. For example, let’s say that despite being injured in a car accident you decided to tough it out for a Saturday afternoon bike ride with a friend. You came home after this bike ride and you paid for it for the rest of the day. You spent the rest of your day and night laying on the couch with an ice pack on your back. While you’re lying on your couch you decide to upload the picture you took of you and your friend Sarah at a rest stop half way through your ride. There you both are, smiling, helmets on, bikes straddled. You caption it:

“A beautiful day for a ride with a friend! #fitfam #goodlife”

Then you hit post and that smiling, seemingly care-free picture of you riding your bike is out there for the world to see. No one knows you spent the next 12 hours flat on your back and out of commission. You can bet that this picture is going to come up and you’re going to have to explain it. Even if you do explain it, it could keep coming up throughout the course of your personal injury claim.

So, what should you do about social media?

 

The Rules

The easiest thing to do is to avoid using social media if you are in the middle of a personal injury claim. As you can see, even an innocuous photo when taken out of context can create an unnecessary hurdle so why open the door for questions unnecessarily?

If you’re too attached to cut ties with social media then before you post anything online, ask yourself: do I want ICBC to see this? If the answer is no, then don’t post it. You need to consider how a third party would perceive the post. When you post a photo to Facebook it is date stamped as of the date that you posted it online. This means that a third party can’t tell that the photo is five years old.

“It’s okay – I never use social media!”

You also need to consider if anyone close to you does. How about your husband? Your wife? Your daughter? Your son? Your sister? You should make your friends and family aware that you don’t want them posting about you on their social media pages while you’re pursuing a personal injury claim.

“It’s okay! My Facebook page is private!”

A private Facebook page won’t stop a Court from ordering you to produce your photos to the Defendant.

One example of this is in Fric v Gershman, 2012 BCSC 614. Master Bouck considered an application by the Defendant to force the Plaintiff to produce the contents of her private Facebook profile page, including photographs of the Plaintiff participating in a sports tournament and of her travelling. The Plaintiff refused to answer any questions about her Facebook page at her examination for discovery. This young Plaintiff had been injured in a car accident while attending the University of Victoria. Master Bouck ordered the Plaintiff to disclose any photographs or videos that showed her at the sports tournament or on vacation since the car accident. This included any photographs stored on her private Facebook page. In making the order, Master Bouck said:

Photographs which show the plaintiff engaging in sporting or physical recreational activity – from hiking to scuba diving to curling to dancing – are relevant in discovering the plaintiff’s physical capacity since the accident.

Master MacNaughton considered a similar application in Cui v Metcalfe, 2015 BCSC 1195. Among other things, the Defendant wanted the Plaintiff to produce relevant entries, photographs, or videos stored on her Facebook page. The Plaintiff was a 33 year old woman who had been injured in a car accident. She claimed that her injuries affected her ability to engage in her athletic lifestyle, including her circus training. The lawyer for the Defendant directed Master MacNaughton to several photographs and one video that the Defendant had already found online showing the Plaintiff participating in difficult physical activities since the car accident. Master MacNaughton ordered the Plaintiff to produce any photographs or videos that showed her participating in pole, aerial, silk or hoop dancing, circus acrobatics or Tough Mudder competitions.

 

The Bottom Line

Using social media carelessly can create unnecessary hurdles for your claim. It’s important to be smart with social media when you’re pursing a personal injury claim.

 

To learn more about your personal injury case visit our personal injury page or contact us at 604.533.3821.