Legal Implications of Facebook Only go so far
September 30, 2009, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
In a recent article in Canadian Underwriters they reported on a decision in British Columbia regarding the admissability of Facebook pictures in a chronic pain case. The court found the pictures not to be relevant as they did not impeach the credibility of the plaintiff. The plaintiff indicated that she could return to her pre-accident activities although not to the same level and with pain. The pictures could not demonstrate whether the plaintiff was credible or not with respect to the issues of level of pain or level of activity. All the pictures could demonstrate was whether the plaintiff was participating in certain activities and socializing which the plaintiff had already acknowledged that she was able to do.
FaceBook evidence must be specific, relevant to undermine injury claim: B.C. court
The Supreme Court of British Columbia recently derailed an effort by defence counsel to introduce 273 FaceBook pictures that purportedly showed a car accident victim was exaggerating her injuries.
In doing so, Mayenburg v. Lu sends a message that insurance defence counsel need to be very precise in court about how social networking evidence specifically undermines an insurance claim.
Mirae Mayenburg was a 20-year-old student in B.C. when she was rear-ended in 2006 by a car driven by Lu Lu. The force of the collision propelled her car forward by up to two car lengths.
Immediately after the collision, Mayenburg complained of a headache, pain in her neck and shoulders, as well as pain in her upper and lower back. She said she lost her sight for a few seconds.
After several visits to a doctor and therapists, Mayenburg quit her job at Canadian Tire in October 2006, saying the constant standing as a cashier aggravated her back pain. She returned to being a student, and tried to hold several part-time jobs, but the pain forced her to leave each one.
"In terms of activities, prior to the accident Ms. Mayenburg did hiking, some biking and running," the court noted in its decision. "She enjoyed socializing with her friends, and would frequently go out dancing.
"She has resumed these activities with barely a gap, although she says she suffers discomfort in her upper and lower back when hiking steep trials, and when dancing. Her running has increased."
When defence counsel attempted to enter 273 photographs obtained from friends' "wall pages" on FaceBook — photos that purportedly undermined Mayenburg's claims about suffering pain — the judge ruled all but 69 of them were inadmissible.
"The bulk of these photos showed no more than Ms. Mayenburg enjoying herself with her friends, for example having a drink in a bar or pub," the judge ruled. "I ruled inadmissible any photos which did not show Ms. Mayenburg doing a specific activity which she said she had difficulty performing, since they had no probative value."
As for the 69 photos that remained, the judge continued, "even these photos do not serve to undercut Ms. Mayenburg's credibility, because she did not say that she could not do these activities or did not enjoy them. Rather, she said she would feel the consequences afterwards.
"In effect, the defendants sought to set up a straw person who said that she could not enjoy life at all subsequent to the accident. That was not the evidence of Ms. Mayenburg
|Posted under Personal Injury, Car Accidents, Chronic Pain, Pain and Suffering
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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.
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