Tag: Social Media

Facebook "Partying" Quote Impacts Personal Injury Trial

In another example of social media posts being used in personal injury litigation reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, where a Facebook post impacted the trial of the 52 year old plaintiff.
In today’s case (Raikou v. Spencer) the Plaintiff was involved in a 2011 T-bone collision.   The Defendant admitted fault. The Plaintiff suffered various soft tissue injuries and had complaints lingering at the time of trial.  The court found some of these were related to the collision and some of these were due to pre-existing factors.  The Court also noted that the Plaintiff “had a tendency to overstate or exaggerate her condition somewhat“.  This finding was due in part to a Facebook update where the Plaintiff discussed “partying“.  In illustrating the use of this quote Mr. Justice Skolrood provided the following reasons:
3]         Before turning to that issue, I should note that while I found Ms. Raikou generally to be a credible witness, in my view she had a tendency to overstate or exaggerate her condition somewhat. This is particularly so in her description of her pain as being constant and unremitting.
[54]         By way of example, Ms. Raikou travelled to Greece in July and August of 2011. When she returned, she posted the following entry on her Facebook page on August 20, 2011:
From the airport to Eleni’s and Nick’s wedding. Missed the ceremony but made it to the reception. From the airport home to change and off to the reception. Made it through and had an awesome time. 48 hours without sleep, jet lagged and still partying.
[55]         I agree with counsel for Ms. Raikou that caution must be applied when considering the relevance and import of Facebook entries in that they are but a mere “snapshot in time” and do not necessarily shed light on a person’s overall condition or ongoing complaints: see Guthrie v. Narayn, 2012 BCSC 734 at para. 30.
[56]         Nonetheless, this particular snapshot is inconsistent with Ms. Raikou’s testimony that her pain condition is continuous and unrelenting and that it has effectively precluded her from enjoying any of her pre-accident activities.

Facebook Strikes Again

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.

The Duty of Lawyers to "Investigate" Litigants Social Media Use


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.

Surveillance and You-Tube Videos Mount "Serious Attack" on Personal Injury Claim


A few years ago I discussed  litigants spying on themselves through the use of social media.  Reasons for judgement were released this week by the BC Court of Appeal demonstrating this reality in action.
In this week’s case (Bialkowski v. Banfield) the Plaintiff was involved in a 2007 motor vehicle collision.  He claimed significant damages and proceeded to trial.  Although there was medical evidence in support of his claim a jury outright rejected it and awarded $0 in damages.
The Plaintiff appealed arguing that such a verdict was “not open to the jury on the evidence“.  The BC Court of Appeal disagreed finding that credibility was a live issue and surveillance and even You-Tube evidence was introduced which could have explained the Jury’s rejection of the medical evidence.   In dismissing the appeal the Court provided the following reasons:
[25]         A major thrust of the respondent’s case was an attack on the credibility of the appellant.  Evidence was adduced of long-term, pre-existing medical issues and personal difficulties the appellant had been obliged to face over the years.  The surveillance video showed him undertaking physical activities that were not compatible with his claimed injuries.  It was supplemented by YouTube videos to the same effect.
[26]         The appellant presented evidence that he has medical difficulties, both physical and mental.  The difficulty is that the appellant was obliged to satisfy the jury that the injuries were caused by the accident.  There was evidence that these difficulties were more severe manifestations of pre-existing problems.  Although he presented a potentially persuasive case that he was injured as a result of the accident, the jury did not accept it. The respondent mounted an apparently successful, serious attack on the appellant’s case aimed extensively at his credibility.
[27]         I have reviewed the litany of medical evidence as canvassed by the parties.  A trier of fact could have concluded that the accident caused compensable injury to the appellant, but it certainly was open to the jury to conclude otherwise.  In my view, there was evidence on which the jury rationally could reach its verdict.  I do not think there is a basis in this case for this Court to interfere with the weight given by the jury to the evidence overall.
[28]         I would dismiss this appeal.

ICBC Now on Facebook


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.

Spying on Yourself With Facebook


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.

Lawyer Ordered to Download His Own Client's Facebook Account Data In Injury Lawsuit


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.

Damages for Violations of Privacy 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.

Damaging Your Personal Injury Claim: Spying on Yourself


It’s a not so well-kept secret that Insurance Companies often hire private investigators to conduct video surveillance of people involved in personal injury claims.  Sometimes the efforts pay off in uncovering a fraudulent claim.  More often than not hours of bland video are produced doing little more than intruding on the privacy of an injured plaintiff.
These days, however, private investigators may play less of a role as many Plaintiffs are doing the surveillance work themselves. That’s right, Plaintiffs spy on themselves and hand the goods right over to the Insurance Company.
I’m talking about the liberal use of social media, specifically YouTube.  When you or a friend make a film and post it on YouTube chances are the video will be of better quality and give more intimate access to your life than anything a Private Investigator can put together.  PI’s often film from the bushes, a van or other less than ideal locations.  The videos produced are often grainy, distant and of poor quality.  Most videos uploaded to YouTube, on the other hand, are up close and personal.  These videos can give a lot of insight into a person’s life.
Whether or not these videos are damaging to your claim insurance companies are viewing them.  This information can either be directly used against you or will give the insurance company further avenues to pursue in trying to damage your personal injury claim.
The reality is that insurance companies are effectively using social media and uncovering a gold-mine of useful information in the process.  As I’ve previously written, the mere mention of ICBC on twitter will immediately bring you to their attention.  If you’re using social media be aware that your audience is bigger than you intend.

What You Need to Know About ICBC's Use of Twitter


If you are making an ICBC Personal Injury Claim and if you use social media such as Twitter ICBC is probably watching you.
You may be asking yourself ‘how can ICBC find my tweets if they’re not one of my followers?‘.  The answer is simple, ICBC monitors the phrase ‘ICBC’ and each time these letters are used the tweet comes to their attention whether they are one of your followers or not.  Want proof?  Here’s a recent exchange demonstrating this use in action.
An individual made an ICBC claim and posted the following on Twitter:

ICBC quickly responded to this individual as follows:

ICBC was not a follower of this indvidual and he was surprised that ICBC saw his tweet as can be seen from the following reply:

From a customer service standpoint this is probably good stratgy by ICBC.  If a customer is unhappy respond and see if you can help.  I have nothing critical to say about this.  However, from an injury claims perspective, people need to know that their social media use is being monitored perhaps by people they don’t want watching them.
I don’t write this post to scare you from using social media or even to discourage you from discussing your ICBC claim on-line.  You need to be aware, however, that your audience can be bigger then you expect.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
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