ICBC Law

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 last week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries caused by a motor vehicle collision.

In last week’s case (Sharifi v. Chaklader) the Plaintiff was involved in a 2008 collision in Vancouver BC.  She was a passenger in a van travelling through an intersection when it was struck by a left hand turning driver.  The Defendant was found fully liable for the crash.  The Plaintiff had some pre-existing problems and the collision superimposed soft tissue injuries on these.  These remained symptomatic at the time of trial.  Despite some concerns with the Plaintiff’s evidence the Court assessed non-pecuniary damages at $50,000.  In doing so Mr. Justice Willcock provided the following reasons:

[99] Weighing the evidence as a whole, I find that Ms. Sharifi suffered a musculoligamentous soft tissue injury to her cervical spine, upper back and shoulders on July 10, 2008.  Those injuries were superimposed on a pre-existent left shoulder injury and on some pre-existent neck pain.  Additional pain and suffering following the motor vehicle accident did not cause, but must have contributed to, the level of her ongoing stress and anxiety, and contributed to her tendency to suffer from migraine headaches.  The injury sustained in the motor vehicle accident has continued to trouble her since; it has affected her capacity to enjoy life, and caused her to suffer an income loss.

[100] On a balance of probability I cannot find Ms. Sharifi suffered a concussion or an injury to her low back.  Nor am I satisfied on the evidence that she has established she has suffered or is likely to suffer from post-traumatic degenerative osteoarthritis as a result of the soft tissue injury sustained in the July 2008 accident…

[103] Damages must be assessed on the basis that the plaintiff has suffered a soft tissue injury superimposed on the other problems documented in the records: a history of some neck pain, a left recurrent shoulder injury that limited her ability to lift, occasional migraine type headaches, stress, anxiety, fatigue and depression-like symptoms (but not clinical depression).  Damages must be assessed on the basis some continuing recovery is probable.  The functional impact of the injury is overstated by Ms. Sharifi.  She is capable of most activities of daily living. I am not satisfied she has established that she is disabled from clerical employment…

[119] …I assess non-pecuniary damages in this case at $50,000.

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.

(Update: The below decision was upheld by the BC Court of Appeal in December, 2011)

As I’ve previously written, the BC Privacy Act allows individuals to sue where their privacy is violated “wilfully and without a claim of right” by another person.  This powerful law permits such lawsuits to succeed even where a Plaintiff cannot prove actual damages.

Despite the strength of the BC Privacy Act, relatively few reported decisions have been released applying this law in the years that it has been on the books.  Useful reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, applying this law in combination with a claim for damages for defamation.

In today’s case (Nesbitt v. Neufeld) the Plaintiff and Defendant were involved in “protracted family litigation” During the course of that litigation one of the parties “resorted to out-of-court publications that are plainly private to the litigants“.  The reasons for judgement are worth reviewing in full for the details but these apparently included “private communications…released to third parties and made available to the public (including)…a YouTube video…a website…a Facebook Page…(and) a letter to the Ministry of Child and Family Development”

The victim sued arguing she was defamed and further that her privacy rights were unreasonably violated.  Mr. Justice Crawford agreed and awarded the Plaintiff $40,000 in damages.   In reaching this award the Court provided the following reasons:

[89]         The B.C. Court of Appeal in Davis v. McArthur (1970), 17 D.L.R. (3d) 760, [1970] B.C.J. No. 664 (QL) (C.A.), said this in the course of its judgment at para. 9 of QL:

To constitute the tort [of violation of privacy] the violation must be committed “wilfully and without a claim of right”. The nature and degree of privacy to which the person is entitled in any situation or in relation to any matter is fully set out in s-s (2) [now ss. 1(2) and 1(3)] and, in my opinion, no useful purpose would be served in attempting to elaborate upon the words contained therein. Regard must be had to the provisions of the subsection as a whole. It is plain that whether there has been a violation of privacy of another must be decided on the particular facts of each case. As the learned Judge below said in his reasons for judgment [10 D.L.R. (3d) 250 at p. 255, 72 W.W.R. 69]: “It is necessary to consider all of the circumstances before determining ‘The nature and degree of privacy to which a person is entitled,’ s. 2(2) [now ss. 1(2) and 1(3)].

[90]         In Hollinsworth v. BCTV, a division of Westcom T.V. Group Ltd. (1999), 59 B.C.L.R. (3d) 121, 113 B.C.A.C. 304, the Court of Appeal defined the term “wilfully” to mean “an intention to do an act which the person doing the act knew or should have known would violate the privacy of another person” (at para. 29 of B.C.L.R.).

[91]         Dr. Nesbitt’s use of the private correspondence between Ms. Neufeld and Ms. X was a deliberate act that violated Ms. Neufeld’s privacy. The communications were extremely personal…

[96] Had Dr. Nesbitt restricted his communications within the confines of the family court litigation where he had counsel to advise him of the bounds of legitimate expression of his opinions, the issues before me in this proceeding might not have arisen. I say “might” because I note that certain publications of Dr. Nesbitt prompted an application to the family court that resulted in a consent order made on September 8, 2008 before Master Caldwell restraining Dr. Nesbitt from making further improper communications…

[102] The reality is that Dr. Nesbitt has taken his battle with Ms. Neufeld over custody and access far outside the ordinary confines of the family court litigation. Even worse his lack of appreciation for the proper boundaries of communication of his opinions has spread to besmirch persons that are friends of Ms. Neufeld.

[103] Dr. Nesbitt disclosed matters private to the parties in a manner that defamed Ms. Neufeld; he is the publisher of the defamatory materials at issue.

[104] For breach of privacy and the defamation aspects of the defendant’s claim, I set that amount at $40,000.

[105] I only limit the defamation damages due to the fact that while it is plainly publication to the world in the sense the defamatory materials were put on the Internet, Ms. Neufeld indicated there has been little personal or professional backlash. Indeed, if I read between the lines, the communications to the Rotary Club, the Ministry and the Child’s doctor were treated with the disdain they deserved.

The Court went on to award the victim ’special costs’ in order to rebuke the other parties ‘reprehensible conduct‘.  The ease created by social media platforms in allowing individuals to quickly publish material to the Internet will likely make claims such as these more prevalent in the years to come.  With this, damage awards for privacy violations will hopefully be shaped into predictable ranges.

Reasons for Judgement were released today by the BC Supreme Court, Vancouver Registry awarding a Plaintiff damages for injuries sustained in two BC motor vehicle collisions.

In today’s case (MacIntyre v. Pitt Meadows Secondary School) the Plaintiff was involved in a total of three seperate accidents and sued.  All three trials were heard together.  His claim for the first accident (a claim against his school for being injured while in shop class) was dismissed.  This left the court to deal with the Plaintiff’s motor vehicle accident claims.

The first motor vehicle collision happened in 2003.  The Plaintiff was 15 at the time.  He was struck by a vehicle at low speed on his right leg while he was walking in a crosswalk.  The issue of fault was admitted.  The Plaintiff suffered a knee injury and eventually had arthroscopic surgery.  Mr. Justice Butler awarded the Plaintiff $35,000 for his non-pecuniary damages as a result of this injury.  In arriving at this figure the Court highlighted the following facts:

86] There is no question that Evan’s right knee suffered a significant blow in the Second Accident.  He suffered discomfort and a restriction in his activities.  In the first three weeks after the Second Accident, Evan missed six full days of school.  He found it difficult to crouch or kneel and felt that the knee was unstable.  He was not able to carry out his part-time job as a football referee.  He used crutches for a month or two and then used a cane.  He found it difficult to use the crutches because this caused additional pain in his right wrist.  His parents rented a wheelchair for him to use at home.  He was unable to take part in part-time work over the Christmas holidays…

[100] There is no controversy between the expert orthopaedic surgeons regarding the nature of the injury and the current condition of Evan’s right knee.  The structural injury was mild.  If there was damage to the ACL, it was not significant and healed quickly.  As of the date of the arthroscopic investigation, the knee compartment exhibited no abnormalities as a result of the injury.  All of the doctors accept that there was a severe strain to the right knee.  The impact of the injury was likely worse than it would have been for most people because of the pre-existing laxity in Evan’s knee joint.

[101] The experts also agree that Evan should have been symptom free sometime after June 2006.  However, as Dr. McCormack notes, there is a small subset of individuals who continue to experience residual symptoms.  The question that remains is whether Evan falls within that small subset.  If I can accept Evan’s subjective complaints of continuing pain and limitation of movement, I can conclude that he falls within that small subset in that his condition has reached a plateau.  This question raises the issue of Evan’s credibility….

I have concluded that I cannot accept his evidence regarding the continuing symptoms that he says he has experienced and is currently experiencing as a result of the three accidents.  There are simply too many inconsistencies in his case to accept his assertions at face value…

[105] In summary, I find that Evan suffered a severe strain to his right knee as a result of the Second Accident.  There is no lasting damage to his knee compartment or the knee structure. There is no possibility of future problems with the knee as a result of the Second Accident.  I also find that Evan’s knee symptoms persisted longer than they would have normally because of the laxity in his knee joints.  I accept Dr. McCormack’s evidence that normally after a couple of months of therapy following arthroscopy patients are able to return to their pre-injury status.  In the circumstances of this case, I conclude that Evan’s knee functioned well within three or four months after the arthroscopy, although some activities continued to cause him pain or discomfort.  Specifically, I find that the symptoms persisted for four or five years…

[111] Taking into account the incapacity Evan suffered after the initial injury and after the surgery, the aggravated injury to his right wrist, and the persistence of the symptoms for four to five years, I fix non-pecuniary damages at $35,000.

The second accident was a rear-end car crash.  Fault was admitted.   The Court had some problems with the Plaintiff’s credibility but ultimately did find that the crash caused a compensable injury.  In assessing the Plaintiff’s non-pecuniary damages at $22,500 for this crash Mister Justice Butler found as follows:

[132] On the basis of all of the evidence, I conclude that the Third Accident resulted in a soft tissue injury to the cervical and lumbar regions of Evan’s spine.  In general, I accept Dr. Hill’s opinion evidence regarding the nature and extent of the injury Evan suffered.  While I do not accept Evan’s complaints of ongoing pain, I find that his symptoms persisted somewhat longer than predicted by Dr. Hill.  Given the level of physical activity Evan was able to maintain in the years following the accident, I conclude that the impairment to his work and leisure activities was not significant.  By the date of the trial, approximately two years after the Third Accident, the injuries were substantially healed…

[135] Given my findings, the cases referred to by the plaintiff are of little assistance.  In light of my finding that Evan’s symptoms persisted for two years, the only case referred to by the defendants that has some similarity to the present case is Levasseur.  Of course, in addition to the soft tissue injuries, Evan also suffered from disruption to his vision, which resulted in the strabismus operation.  In all of the circumstances of this case, I assess non-pecuniary damages at $22,500.

In addition to the Court’s discussion of pain and suffering awards this decision is worth reviewing for the extensive reasons given with respect to credibility.  In a tort claim involving soft tissue injuries Plaintiff credibility plays a key role.  Here the Court made some unfavourable findings with respect to some of the Plaintiff’s evidence.   Some of the evidence that influenced the Court’s findings were “facebook photographs…(showing the Plaintiff) performing many other activities without apparent difficulty.” and video showing the Plaintiff “winning the limbo contest with an impressive limbo move“.  This case is worth a read to see the damaging impact photographic / video evidence can in BC injury litigation.

In April of this year the BC Supreme Court ordered that a Plaintiff involved in a Brain Injury Claim from a BC Car Crash “produce for inspection by an independent expert a duplicate copy of his computer hard-drive and that the expert prepare a report identifying the number, nature, and time for all files relating to the use of the plaintiff’s Facebook account between the hours of 11:00 p.m. and 5:00 a.m., dating from July 23, 2005 to the present.” (Click here to read my post summarizing the trial decision).

The Defendant in this case sought greater disclosure including “production of information (from the Plaintiff’s computer hard drive) regarding the number, nature and time of the information files that related to the Plaintiff’s Hotmail account and all other computer activity occurring between the hours of 11:00 pm and 5:00 am.”  This application was dismissed by the Chambers Judge.

The Defendant asked the BC Court of Appeal permission to appeal this order arguing that such information would have been relevant in assessing the Plaintiff’s brain injury claim and that the Judge failed to turn his mind to the application properly.

The Court of Appeal refused to hear the appeal holding that the sought order was not supported by the evidence, specifically the Court of Appeal held as follows:

[22] At the plaintiff’s examination for discovery, he testified that he communicated with a friend on Facebook at night.  He also testified that he does have a Hotmail account but he had not “checked it forever”.  His mother testified that if anyone used the computer after 11:00 p.m. on weekdays, it would be the plaintiff (as opposed to other family members), and that he would probably be on the computer most nights.

[23] In the psychiatric assessment dated March 10, 2008, the plaintiff had apparently reported to his psychiatrist as follows:

[H]is sleep varies with the time one of his friends goes to bed.  This is because he spends a lot of time on Facebook chatting with this friend.

[24] I conclude that this appeal is prima facie without merit.  It is true that the chambers judge did not explain his reasons for dismissing that part of the application that is the subject of the appeal, but having reviewed the evidence that was before the chamber judge, it does not appear to me there was an evidentiary foundation for the request for the electronic records of his computer usage beyond Facebook.  Any other usage, such as was suggested in the argument before me (that the plaintiff may be using gaming websites or other such websites late into the night), appears to be somewhat speculative.

[25] I dismiss the application for leave to appeal.

You can read the full judgement by clicking here (Bishop v. Minichiello)

Unfortunately the Court of Appeal did not highlight any factors which will be of use in considering when applications for computer hard drives will be meritorious in personal injury claims.  With more and more information being stored on computers these days, however, such applications will become more frequent and it will only be a matter of time before the Court of Appeal has a chance to weigh in on this important issue.