If you make a personal injury claim, should you be extra careful what you post online? Will your posts be used against you?
In the recent case of Carlisle v. Vanthof (2015 BCSC 2427), the plaintiff was in her early thirties. She was injured in a 2010 collision, and continued to suffer with chronic pain at the time of trial. She was very active online – posting photos on Instagram of just about everything she did. The central issue in the case was how the plaintiff’s injuries affected her life and overall functioning. ICBC’s lawyer put over 100 photos from Instagram and Facebook into evidence, attempting to show that her life/functioning was minimally impacted by her injuries.
In awarding $90,000.00 in damages for pain and suffering, Mr. Justice G.P. Weatherill made the following observations about the plaintiff’s social media, confirming that the posts could not be used against the plaintiff because they did not contradict her claims:
[108] She is also a socialite. Her Instagram photos confirm, and she does not deny, that she has a social life that includes numerous wine tours, trips, dinners out and general socializing.
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[114] The defence placed over 100 photographs of approximately 400 obtained from the plaintiff’s Instagram/Facebook accounts into evidence. They chronicle a portion of the plaintiff’s life, including social activities and vacations, from July 2013 through August 2015. They dovetail with the plaintiff’s evidence and for the most part are benign. They confirm her evidence that she continues to maintain a social life despite continuing pain. A few of the photographs that appeared to be inconsistent with her evidence that she leads a somewhat sedentary lifestyle were explained away in a satisfactory manner.
[115] The plaintiff is prolific with posting photos on her social media accounts. I infer from the sheer volume that her habit is to create a pictorial history of enjoyable activities with friends, travel, dinners and wines tours when they occur. The plaintiff is someone who posts everything to social media as a way of letting her friends know what she is doing on a regular basis and I am satisfied that all the activities she has done in the past two years have been covered by those postings. Photographs that are inconsistent with her described abilities would likely have been posted. None apparently were.
[116] The plaintiff does not deny that she is carrying on with her life, including being active with her friends on weekends and other occasions. She does not suggest that she is an invalid.
[117] This case is not about what the plaintiff can do, it is about what the plaintiff cannot do and how her injuries have and will affect her.
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