Use social media at your peril.
On June 7, 2016, a judge of the BC Supreme Court rejected claimed damages in a personal injury lawsuit due, in part, to concerns about the plaintiff’s credibility arising out of Facebook photos entered as evidence at trial.
In Brennan v. Colinders, 2016 BCSC 1026, the plaintiff was involved in a 2012 motor vehicle accident for which the defendants admitted fault. The plaintiff claimed that the accident caused chronic problems which continued up to the time of trial. The judge rejected this claim, finding that the collision-related injuries had resolved. In awarding $20,000 in non-pecuniary damages, Madam Justice Baker provided the following comments regarding the plaintiff’s credibility and specifically discussed the significance of the Facebook photos:
[11] I found, in general, that Mr. Brennan is not a credible witness. He proved to be a very poor historian. While some of the problems with his testimony could perhaps be considered the result of poor memory or carelessness, there were also instances of what I consider to be a failure to respond honestly and truthfully to questions asked; and a tendency, often demonstrated, to shade or colour his testimony in a way he perceived to be helpful to his case. Some of his testimony was contradicted not only by the testimony of defence witnesses, but also by other witnesses called on behalf of the plaintiff. While testifying, Mr. Brennan frequently contradicted himself. He gave different versions of the same events at different times….
[103] Since March 2012, Mr. Brennan has acquired a new hobby, which, judging by the numerous photographs he has posted on his Facebook page, provides him with considerable satisfaction. Mr. Brennan testified that he obtained a firearms permit and a friend purchased a handgun for him. He has posted numerous photographs of himself in various poses with this weapon.
[104] Mr. Brennan testified he had attempted camping on one occasion but after one night found sleeping on the ground too uncomfortable. Again, the timing of this attempt was unclear.
[105] I am prepared to accept that for a short time after the March 2012 accident, Mr. Brennan would have found his usual recreational and social activities less enjoyable than before the accident injuries exacerbated his chronic condition, but that within six months post-accident he was not prevented from participating in the activities to the same extent he had prior to the accident.
[106] Counsel provided the Court with various authorities: George v. Doe, 2015 BCSC 442; Dhaliwal v. Pillay, 2015 BCSC 509; Graydon v. Harris, 2013 BCSC 182; Kahle v. Ritter, 2002 BCSC 199; Lamong v. Stead, 2010 BCSC 432; Zvatora v. Liberman, 2000 BCSC 306, Friesen v. Fiddler, 2003 BCSC 1955; Dymond v. Wilson, 2001 BCSC 244; Boyd v. Shortreed, 2009 BCSC 1468; and Ryan v. Kakowich, 2011 BCSC 835. None of these authorities deals precisely with the situation of a plaintiff who was already largely incapacitated prior to an accident involving a minor exacerbation of pre-existing debilitating symptoms. I find the range of awards in the cases cited by defendants’ counsel to more closely reflect the facts in this case.
[107] I award the sum of $20,000 for non-pecuniary damages.