ICBC Law

In yet another example of a personal injury claim being undermined by postings on social media, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating a Facebook posting undoing a claimed damage.

In this week’s case (Neyman v. Wouterse) the Plaintiff was injured in a 2007 collision.  She sued for damages and her claim was partially successful.  An aspect of her claim that was not accepted dealt with driving anxiety.

The Plaintiff claimed that one of the consequences stemming from the collision was “a driving phobia“.  The Court did not accept this finding that the Plaintiff was “an unreliable historian“.  In coming to this conclusion the Court referenced the Plaintiff’s own Facebook posting and provided the following reasons:

[126]     Ms. Neyman’s evidence that she continues to suffer from a driving phobia, albeit one that has improved, is also questionable. Before a Facebook posting that she made on January 9, 2009 was put to her, she gave the impression in her evidence that she generally suffered from anxiety after the Accident, but that it improved with time. In her Facebook posting, she wrote about driving her mother’s manual transmission BMW late at night and at high speed. The entry reads:

Angela Neyman is finally remembering how awesome it is to drive 120 clicks on a clear road in her car (Ang ?’s Speedy G).

[127]     I found that Ms. Neyman’s responses to questions during cross-examination about that entry reflected poorly on her credibility and indicated a mindset that continues to be heavily focused on the Accident as the cause of every problem or difficulty she has faced since. Once the Facebook entry was put to her, Ms. Neyman denied suffering any phobia to driving that involved driving very fast, late at night, and in the dark with a sore knee. I also found Ms. Neyman’s attitude towards defence counsel during the exchange to have been inappropriately condescending. I also found Ms. Neyman’s evidence to be at odds with her previous testimony that in 2011, two years after the Facebook posting, she was forced to purchase a vehicle with an automatic transmission because she found driving a car with a clutch aggravated her hip. That evidence is also inconsistent with her similar advice to Dr. van Rijn in 2010 that she found it difficult to drive a standard vehicle, “as using the clutch aggravates her back and hip pain.”

[128]     Many of the answers she gave in cross-examination about a number of her Facebook postings reflected a mindset to minimize physical and travel-related problems not related to the Accident, and to discount as overstated those Facebook postings that suggested she was, following the Accident, pursuing an over-burdensome schedule by working mostly full-time hours while attending school on a full-time basis.

[129]     I am, respectfully, unable to accept the submission made by her counsel that a number of Ms. Neyman’s postings on her Facebook that might reflect poorly on her credibility should be characterized as youthful boasting to her peers. Her comments on Facebook were made of her own volition. In my opinion, having observed Ms. Neyman in the witness box over the course of several days, I am satisfied that her Facebook comments accurately reflect her mindset when each posting was made.

[130]     In all, I found Ms. Neyman to be an unreliable historian in many respects. She is unduly focused on the Accident as the cause of all of her pain and difficulties with school and work. Accordingly, I find it difficult to place meaningful weight on much of her evidence concerning the nature and extent of her pain and suffering caused by the Accident and what happened to her on impact.

It is well established that social media postings and other electronic ‘records’ can be relevant in injury litigation.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this and discussing litigant’s duties to canvass these documents in the course of litigation.

In  last week’s case (Ahadi v. Valdez) the Plaintiff was injured in a 2005 collision.  In the course of her trial an e-mail which was not previously disclosed was put to a witness. This led to a delay of the trial with further discovery taking place.   Madam Justice Adair provided the following comments addressing this development:

[154]     The defendants argue that Ms. Ahadi’s failure, prior to trial, to disclose all relevant electronic documents demonstrates a general lack of honesty on her part.  The problem relating to discovery of electronic documents was discovered on the third day of trial, when Mr. Marcoux showed e-mail communications to a witness (Ms. Betty Chow, Ms. Ahadi’s boss when she was working at Shoppers Drug Mart) that had not previously been disclosed to the defendants.  Mr. Marcoux acknowledged that he had received the e-mail communications from Ms. Ahadi shortly before the trial began.  An order was then made concerning production of electronic documents, and Ms. Ahadi was required to submit to further oral examination for discovery.  This turn of events was very unfortunate, and made an already stressful experience (the trial) even more so.  It was also completely avoidable, if only appropriate inquiries had been made by Ms. Ahadi’s solicitors prior to trial concerning the existence and location of relevant and producible electronic documents.  Court had to be adjourned early on the third day of trial, after the issues concerning Ms. Ahadi’s electronic documents had been uncovered and during Ms. Ahadi’s examination-in-chief, because Ms. Ahadi felt unable to continue in the circumstances.

[155]     The defendants argue that, because of the circumstances surrounding production by Ms. Ahadi of electronic documents and the conflicts in her evidence concerning the location of electronic documents in her home, I should give no weight to either Ms. Ahadi’s evidence at trial or her self-reports to the various experts.  The defendants say that anything less would be unjust to them.  They also argue that I should draw an adverse inference against Ms. Ahadi.

[156]     I do not agree. 

[157]     In my opinion, it does not follow from what happened concerning discovery by Ms. Ahadi of electronic documents that I should give no weight to her evidence generally.  Ms. Ahadi’s solicitors need to accept at least some of the responsibility for what occurred.  Prior to trial, they should have investigated the existence of relevant electronic documents much more thoroughly than they did.  Had they made a proper and thorough investigation, Ms. Ahadi’s solicitors could have avoided placing their client in the uncomfortable position in which she found herself on the third day of trial.  Defendants’ counsel also had the opportunity to pursue the matter of electronic documents (such as Facebook postings and e-mail), when Ms. Ahadi was examined for discovery some nine months before the trial, but they did not.  In my view, Ms. Ahadi’s evidence should be assessed looking at all of the relevant factors.  The court can accept some, all or none of the evidence of a witness.

In my continued efforts to track BC Caselaw addressing Facebook photos in personal injury lawsuits, reasons for judgement were released last week by the BC Supreme Court, Prince George Registry, highlighting the successful use of such photos in challenging an injury claim.

In last week’s case (Welygan v. Willms) the Plaintiff was injured in a 2008 motorcycle collision.  Liability was admitted by the defendant.  The Plaintiff advanced a claim alleging longstanding and disabling physical injuries.  The Defendant acknowledged some level of injury occurred but disputed the extent and severity of the claim.  Ultimately the Court rejected many of the Plaintiff’s advanced damages and in doing so provided the following comments addressing Facebook photos which were put into evidence:

 [107]     She was shown a Facebook photograph of her performing on stage and she says she does not recall what she was doing at the time…

[331]     …her Facebook photograph that shows her singing on stage in no apparent discomfort, and the evidence of Mr. Wall that he saw her singing and dancing on stage and jumping off the stage…

[369]     I find it persuasive that the plaintiff has been able to perform on stage with her band and twist her body as is shown in the photograph of her on stage. If her back is as badly injured as she says it is, I do not believe she would be able to perform as the photograph indicates.

[370]     In addition I accept the evidence of Mr. Wall that he saw her performing on stage with her band after the accident and she was dancing around on stage and in the crowd. When she came off the stage she sometimes put her hand on the stage and jumped off it, a distance estimated by him to be about four feet.

Adding to this site’s archived posts addressing Facebook photos in BC personal injury lawsuits, reasons for judgement were released today by the BC Supreme Court, Vernon Registry, finding such photos to be ‘of limited usefulness‘ when assessing a chronic soft tissue injury claim.

In today’s case (Dakin v. Roth) the Plaintiff was injured in three collisions.  The Defendant unsuccessfully argued that the Plaintiff  ”is not a credible witness”.  In support of this argument the Defendant introduced two years of photos taken from the Plaintiff’s Facebook profile.  In discussing the lack of impact of these photos Mr. Justice Cole provided the following reasons:

[55]         The defendants have entered into evidence photos posted on the plaintiff’s Facebook between 2007 and 2009, which the defendants say are inconsistent with her physical limitations.

[56]         I do not place much weight on those photographs. They are staged, at a party, and taken on holidays. As stated by Mr. Justice Goepel in Guthrie v. Narayan, 2012 BCSC 734 (at para. 30) in respect to Facebook photos:  “Those pictures are of limited usefulness. [The plaintiff] is seeking compensation for what she has lost, not what she can still do.” I agree.

As previously discussed, Facebook photo production is becoming a common occurrence in personal injury litigation.   Despite the undesirable consequences on privacy expectations it is worth remembering that such photos, much like more conventional surveillance evidence, are not necessarily harmful in and of themselves.  Surveillance evidence is only damaging to a personal injury claim when it depicts activities inconsistent with the Plaintiff’s evidence.  Photographic evidence that does not reach this threshold is really of little value.  This was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.

In today’s case (Guthrie v. Narayan) the Plaintiff was injured in a 2009 rear-end collision.  She suffered from chronic soft tissue injuries which were expected to cause on-going problems into the future.  At trial the Defence introduced Facebook photos depicting the Plaintiff on a trip to Las Vegas.  Mr. Justice Goepel found these to be of little value and assessed non-pecuniary damages at $65,000.  In doing so the Court provided the following reasons:

[27] I accept the testimony of Dr. Cordoni and Dr. Badii. I find that Ms. Guthrie sustained soft tissue injuries to the neck and back as a result of the motor vehicle accident. These soft tissue injuries have led to chronic neck and shoulder pain. I find that it is unlikely that there will be any significant change in her condition for the foreseeable future.

[28] I further find that Ms. Guthrie has aggressively attempted to deal with her injuries. She has followed the medical recommendations made to her. She has attended physiotherapy and message therapy. She took a series of painful IMS treatments. She works out regularly. She has done all she can to assist in her recovery.

[29] Unfortunately, however, Ms. Guthrie’s injuries have not resolved. They continue to seriously impact her daily life and will likely do so for the foreseeable future. The injuries have affected all facets of her life. She needs accommodation at work, cannot partake in some sports she formerly enjoyed, must avoid certain social events and even has difficulty when she attempts to cuddle with her boyfriend. She is no longer suited for many occupations and requires accommodation to carry out many of the occupations that are still available to her.

[30] In making these findings, I have not overlooked the pictures posted on Ms. Guthrie’s Facebook page concerning her trip to Las Vegas. Those pictures are of limited usefulness. Ms. Guthrie is seeking compensation for what she has lost, not what she can still do. 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. 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 result of the accident…

[35] While the subject cases are of general assistance and provide a guideline as to the range of damages awarded in cases with some similarities to the case at bar, each case must be decided on its own facts. Of primary importance in this case is the age of the plaintiff, the manner in which the injuries have impacted on her life, and the medical evidence which suggests that any future improvement is unlikely. I note in the cases cited by the defendant the prognosis for the plaintiffs was much more favourable than that concerning Ms. Guthrie. I award $65,000 in non-pecuniary damages.

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing the production of private social media data in the context of a personal injury claim.

In today’s case (Fric v. Gershman) the Plaintiff sued for damages for injuries sustained in a 2008 collision.  The Plaintiff apparently suffered from “chronic severe headaches and soft-tissue injuries” following the crash.  The Plaintiff, who was a first year law school student at the time of the crash, plead damages for various losses including diminished earning capacity.

ICBC sought production of the Plaintiff’s entire Facebook profile, vacation photos and metadata related to digital photos in her possession.  Master Bouck held that while some of this relief was too broad, relevant photos need to be disclosed and ordered production accordingly.  In doing so the Court provided the following reasons:

[54] After considering all of these authorities, I have concluded that some of the plaintiff’s photographs, including those held on the private Facebook profile, ought to be disclosed.

[55] The pleadings define the issues between the parties. Here, there is also evidence on which the court can exercise its discretion to allow for broader document discovery under Rule 7-1(14).

[56] In her pleadings, the plaintiff alleges that the accident led to not only loss of amenities of life, but also loss of mobility and diminished earning capacity.

[57] The diminished capacity is said to be the result of pain and fatigue. Ms. Fric claims that the injuries effected her academic achievements and thus ability to secure employment after her second year of law school. The ongoing symptoms continue to impact Ms. Fric’s working capacity.

[58] How this diminished capacity is measured is yet to be determined. However, the defence fairly argues that a damage award for a young professional’s diminished earning capacity can be very significant. Although plaintiff’s counsel downplays this aspect of the claim, there is no suggestion that the plea is to be withdrawn.

[59] Ms. Fric has also testified that the accident-related injuries have negatively impacted her social life and ability to perform certain sports or recreational activities, either pain-free or at all. While Ms. Fric has remained an active individual, the symptoms from the accident-related injuries are allegedly unresolved. Obviously, the ongoing complaints will influence the award claimed for pain and suffering.

[60] Photographs which show the plaintiff engaging in a 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.

[61] I do not agree with the plaintiff’s submission that such information is only relevant when there is a claim or evidence of total disability.

[62] In terms of proportionality and ensuring a fair trial on the merits, the defence should be given an opportunity to discover the plaintiff on all aspects of her physical functioning and activity level since the accident.

[63] Allowing such discovery does not preclude the plaintiff from arguing that some of the produced photographs are inadmissible at trial. The trial judge may accept that the prejudicial effect of a particular photograph outweighs any probative value.

[64] Nonetheless, the order sought by the defendants is too broad…

[70] In my view, the appropriate relief is to order Ms. Fric to produce an amended list of documents which identifies the photographs and video in her possession and control in which in which she is featured:

1.  participating in the December 2008 Law Games; and

2.  on a vacation taken since November 18, 2008.

[71] The photographs should be identified by location, date and time (if this information is available to the plaintiff). The defence may then choose to either inspect the photographs (electronically or otherwise) and/or pay for the photographs’ duplication.

[72] Before disclosure, the plaintiff may edit the photographs to protect the privacy of other individuals appearing in those photographs…

[75] The plaintiff is not obliged to include commentary from the Facebook web?site. If such commentary exists, the probative value of this information is outweighed by the competing interest of protecting the private thoughts of the plaintiff and third parties: Dosanjh v. Leblanc.

[76] Costs of the application will be to the defendants in the cause.

ICBC is no stranger to social media having an active twitter account for the past two years.  In addition to their active twitter presence they regularly mine social media sites for information in claims investigations.

Despite their social media presence they have neglected opening a Facebook account until now.  Thompson’s World Insurance News reports that ICBC has finally dived into the world of Facebook with their own account.  They report (and I agree) that this is a brave move as there has been no shortage of abuse they receive via twitter which is gracefully handled by the ever patient and diplomatic Karen Basaraba.

ICBC’s Facebook Page can be found here.  Welcome to Facebook Karen.

As readers of this blog know I hate insurance fraud.  Sometimes fraudulent claims are weeded out through investigation efforts, other times fraudulent claimants unwittingly spy on themselves.

Today, ICBC reports another example of an individual ratting themselves out unwittingly through social media, in this case Facebook.  ICBC reports the following tale of insurance fraud undone through social media:

(the Claimant’s) troubles began when he rolled his vehicle on a rural road near Springhouse, a small community west of Williams Lake.

At the time, he was prohibited from driving so in order to collect insurance on the vehicle, which was a total loss, he convinced a friend to tell ICBC that she was the driver. At the time of the crash, three other people were in the vehicle and fortunately, no one suffered serious injuries.

The story came apart after ICBC’s special investigation unit (SIU) became aware that Joseph was bragging on his Facebook page that he had rolled his truck after drinking at a New Year’s Eve party and subsequently got a big payout from ICBC.

ICBC reports that the individual was ultimately criminally charged and penalized with a fine, a restitution order and a conditional sentence.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a defendant application requesting the production of a Plaintiff’s Facebook postings, Twitter postings, Computer Hard Drive and Iphone.

Today’s case (Dosanjh v. Leblanc and St. Paul’s Hospital) involved allegations of medical malpractice.  The plaintiff said she suffered “cognitive impairment that has affected her thinking process“.  She sued for damages.  The Defendants brought an application seeking that the Plaintiff produce her private social media account information and computer hard-drive data arguing that this information would be relevant to the claimed damages.  Master Taylor dismissed the application finding such a broad application, even in the face of alleged cognitive injuries, was “a classic fishing expedition, but without the appropriate bait.“.  Master Taylor provided the following reasons:

[28] The defendant has not indicated the material fact or facts which it believes can be proved by searching the plaintiff’s personal computer and her social media sites.  Rather, the defendant merely says that health, enjoyment of life and employability are in issue.  Surely more is or should be required to meet the test of Rule 7-1(1)(a)(i) than just saying a particular matter is in issue in order to infringe on a litigant’s privacy.

[29] To be able to obtain a litigant’s private thoughts and feelings as expressed to friends or family members after the fact is, in my view, similar to a party intercepting private communications of another party.

[30] I am unable to envisage any rational justification for breaching the privacy rights of an individual in civil proceedings simply because it is alleged that the individual’s general health, enjoyment of life and employability are directly at issue.  Merely because a record may be made of the communication shouldn’t make it any different than a private telephone conversation.  If not, surely applications in civil proceedings for recordings of private communications can’t be far behind…

[33] I am satisfied that the defendant’s application is entirely too broad and lacks the focus required by Rule 7-1(1)(a)(i).  In fact, I am more inclined to call this application a classic fishing expedition, but without the appropriate bait.  I observe as well that the order made by the court in Bishop, supra, was focussed on the times the plaintiff spent on his Facebook account on his computer, and did not give the defendant cart blanche to troll through the plaintiff’s correspondence as is sought in the application before me.

Controversial reasons for judgement were recently released by the The Court of Queen’s Bench of New Brunswick.  The Court required a Plaintiff in a personal injury lawsuit to preserve all contents on her Facebook homepage and have these produced.  While requiring Social Medial Data production is not necessarily unique, the way the Court required this evidence to be preserved will cause concern for many.

In the recent case (Sparks v. Dube) the Plaintiff was injured in a motor vehicle collision in Fredericton in 2008.  She hired a lawyer and sued for damages.  In the course of the lawsuit the defence lawyer brought a motion, without notifying the plaintiff’s lawyer, requesting personal information from the Plaintiff’s Facebook account.  The Court granted the motion and made the following contraversial orders:

1)  A Preservation Order and, in the alternative, an Interlocutory Injunction are hereby made and issued compelling Erica Sparks: 1) to preserve and maintain without deletions or alterations the entire contents of her personal Webpage(s) on the social network Facebook including but not limited to photographs, text, links, postings, event details and video clips until further direction of the court, and 2) to participate in the carrying out of the following orders where her participation is required;

2)  The Interlocutory Injunction shall expire ten days after these orders take effect instituted;

3)  The Applicant-Defendant shall personally and immediately serve all orders and a copy of this judgment upon the Plaintiff’s solicitor, Mr. James Crocco who shall not disclose any of the orders set out herein nor the contents of this judgment except on terms as they are allowed by these orders;

4)  Upon being served, Mr. James Crocco shall arrange for a solicitor in his firm or an agent lawyer of his choice to be appointed to carry out as soon as reasonably possible, and in the case of the Interlocutory Injunction within ten days of the taking effect of these orders, the orders set out that pertain to his client Erica Sparks subject to the following terms:

a)  The appointed solicitor shall be remunerated by the Defendant for his or her services;

b)  That solicitor shall immediately contact Ms. Sparks and, without disclosing the nature of the subject matter to be discussed, schedule a meeting with her at a location convenient to access and download data from the Internet and reduce it to usable form, such as hard copy for data so suited or memory stick or other such device for videos, as soon as reasonably practicable;

c)  Upon personally meeting with Erica Sparks at the location chosen the appointed solicitor shall apprise her of the terms and conditions of the Preservation Order and Interlocutory Injunction as well as the other orders contained herein that pertain to her;

d)  Immediately upon disclosure of the terms and conditions of the orders set out, Erica Sparks, in the presence of the solicitor engaged, shall create a permanent tangible records in hard copy, wherever possible, or to other suitable device, of the entire contents of her Webpage(s) on Facebook including, but not limited to, all photographs, text and links and shall record by a memory stick or other suitable device any videos posted or linked to Erica’s Sparks’ Webpage, one copy of which shall be sealed upon the carrying out of that part of these orders and delivered to Mr. James Crocco to be held and preserved by him until further direction of the court; but the delivering of a sealed copy of the entirety of her Webpage(s) shall not operate to preclude Erica Sparks from providing her counsel, Mr. James Crocco, or anyone else of her choosing with a copy of the entirety of her Webpage(s) in order to prepare for the Production Hearing or further proceedings;

5)  Upon complying with the said orders the solicitor appointed to supervise the downloading of the material referred to herein shall immediately review all of the material downloaded to ensure that the orders have been carried out in full and shall then certify to the court in writing that there has been strict compliance with the orders contained herein, and that the sealed packet represents the entire contents of the Facebook Webpage(s) of Erica Sparks as well as videos posted or linked to it or them;

6)  Upon the successful execution of the orders set out herein and the execution of the certification of strict compliance with the orders contained herein by the solicitor appointed to supervise the downloading of the material referred to herein  Erica Sparks shall be free to resume unrestricted access to her Webpage(s) on Facebook including its substantive composition;

7)  The Motion begun on December 9, 2011 shall be adjourned to a date to be fixed by the Clerk of the Court of Queen’s Bench for the Judicial District of Woodstock;

8)  The Defendant shall then file with this court and serve on the Plaintiff, in timely fashion, a Notice of Motion for the production and disclosure of the contents of the sealed packet of information/data;

9)  Once a date for a Production Hearing has been set Mr. James Crocco shall bring to that hearing the sealed packet of data retrieved from the Facebook Webpage(s) of Erica Sparks pursuant to the orders contained herein;

10)                     Upon completion of the execution of the orders contained herein, that apply to the retrieval of the entire contents of Erica Spark’s Facebook Webpage(s) on the terms as set out in these orders, the temporary oral sealing order sealing the entire file and court record in this matter that was imposed on December 9, 2010 at the conclusion of the ex partehearing shall be lifted without further order of the court.

11)                     The Plaintiff shall upon execution of these orders and the holding of a Production Hearing, in timely fashion, file a further and better Affidavit of Documents;

I understand that this order is being appealed and look forward to the New Brunswick Court of Appeal’s views on this matter.  While there are cases requiring Plaintiffs to produce social media data in personal injury lawsuits in BC, I am not aware of any cases in this Province going as far as the above decision.  Arguably the New BC Rules of Court focus on proportionality, narrower document disclosure obligations, and general prohibition of “fishing expeditions” in discovery of documents would prevent such an order from being granted in BC.