MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

278 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
2. Personal Injury
The most common use of social networking evidence in personal
injury claims is the determination of damages, particularly the extent of
injury and the amount of damages. Some cases involve plaintiffs seeking
claims beyond statutory maximums or standardized insurance company
payouts for general damages. The evidence may not eliminate all damages,
as the courts are likely to issue general damages for pain and suffering, but
may be used to demonstrate that a plaintiff’s ongoing claim is exaggerated.
For example, a British Columbia court reduced the claim for future
earnings loss of a 22-year-old who suffered a back injury, after discovering
Facebook photos that showed her white water rafting, playing soccer and
climbing. 248 Another court minimized damages to an accident victim who
claimed she could no longer engage in activities after Facebook
photographs appeared of her hiking and riding a bike, raising doubts
about whether the injuries affected anything other than her ability to run
long distances. 249 A court refused to issues further damages for a boy
injured in three separate accidents after Facebook photos showed him
playing football and other sports indicating his knee injuries had healed. 250
An Ontario Court in Kourtesis v Joris 251 found that Facebook photos of the
plaintiff celebrating and in social poses indicated that she still enjoyed life,
and therefore was not eligible for increased benefits beyond those
authorized under the province’s no-fault insurance scheme. Similarly, an
Ontario judge limited damages to a girl who received a scar across her face
in a car accident. The court found the injuries were not seriously
interfering with her life as “she socializes, dates and has even gone to the
extent of providing her picture on the computer program Facebook.” 252 In
Tyrell v Bruce, 253 an Ontario judge rejected the plaintiff’s entire belated
claim for severe injuries after the defendant uncovered evidence of the
plaintiff dancing in a rap video.
248
Skusek v Horning, 2009 BCSC 893 (available on WL Can).
249
Bagasbas v Atwal, 2009 BCSC 512 at para 5 (available on WL Can).
250
MacIntyre (Litigation Guardian of) v Pitt Meadows Secondary School, 2010 BCSC 256
(available on WL Can).
251
Kourtesis v Joris, 2007 CarswellOnt 4343 (WL Can) (ON Sup Ct J).
252
Goodridge (Litigation Guardian of) v King (2007), 161 ACWS (3d) 984 at para 128
(available on WL Can) (Ont Sup Ct J).
253
Tyrell, supra note 21.