FACEBOOK POSTS HARM PERSONAL INJURY CASE

Reasons for judgement from Tambosso v. Holmes, 2015 BCSC 359 were released recently by the B.C. Supreme Court, rejecting aspects of a personal injury claim in part due to postings from an injured Plaintiff’s Facebook page that contradicted the evidence the Plaintiff provided at trial and to the various doctors.

In Tambosso v. Holmes, the Plaintiff was involved in two collisions. She claimed she suffered significant injuries and sued for damages. Mr. Justice Jenkins accepted that the Plaintiff sustained some injuries but dismissed the majority of her claim, largely as a result of the Plaintiff’s Facebook posts, which the Court had ordered her to disclose earlier on in the proceedings.

With respect to the Facebook posting portion of the Plaintiff’s evidence, Mr. Justice Jenkins wrote the following:

[170] Throughout her evidence, the plaintiff testified that as a result of the PTSD and stress suffered as a result of the aftermath of the 2008 accident, her life completely changed from that of a vibrant, outgoing, industrious, ambitious, physically active, progressive and healthy young woman to that of a housebound, depressed, lethargic, forgetful, unmotivated woman who is unable to concentrate, cannot work, has friends only on the internet and whose “life sucks”.

[171] One hundred and ninety-four pages of Facebook entries from her Facebook page posted between May 7, 2007and July, 2011 were entered in evidence following an order for production by Master Tokarek in August 2011. There are extensive status updates, photographs, and other posts to the plaintiff’s Facebook page that at face value appear to directly contradict her evidence regarding her alleged injuries, and her state of mind following the 2008 accident in particular. All of the posts were included in Ex. 1, Tab 1.

[172] It was submitted in argument that persons posting the events of their life on social media tend to post positive events and activities to portray themselves as “social” and avoid posting negative thoughts, events and news. There is no opinion evidence to support this submission, but I nonetheless approach the Facebook evidence with caution. However, even given potential frailties with this evidence I find there are numerous examples that buttress my findings on the plaintiff’s credibility.

[173] Examples of postings of the plaintiff on Facebook which conflict with the evidence of the plaintiff are many; I highlight some examples which are included in the Facebook pages found at Ex. 1, Tab

a) The plaintiff testified that she loved her position as front desk manager at the Summit Lodge and Spa, was performing well and putting in extra hours, was intending to make a career out of work in the hospitality industry and expected to be able to manage the hotel or other hotels in the future. Her manager for most of her time at the Summit, Ms. Camilla Say, was not so complimentary, saying the plaintiff was “great initially at fulfilling her duties”, started to struggle towards the end of winter as the job was high stress and by the spring of 2008 she “was not enjoying the job” and “was moody, short tempered”. Ms. Say continued that there had been staff complaints, “she was gone at times” and as to whether the plaintiff was management material, Ms. Say’s response was “she was fairly young, not loving the hours, and therefore would say she is not management material”. Facebook postings by the plaintiff reflected the stress of the job, and included posts on February 5, 2008 that she “is feeling over worked and under…”, on February 9, 2008 that she “could duplicate herself so work would be easier…” and on May 16, 2008 that she “is wishing work didn’t interfere with life…” These Facebook postings reflect the evidence of Ms. Say, not the trial evidence of Ms. Tambosso.

b) Facebook postings indicated that the plaintiff quickly returned to join her friends in social events following the 2008 accident. On July 29, 2008 and August 6, 2008, mere weeks after the 2008 accident, Ms. Tambosso was tagged in photo albums entitled “Kerri’s Stagette” and “Kerri’s Stag Part 2” that depict her drinking with friends and river tubing near Penticton. Similarly, numerous posts from October 2008 indicate the plaintiff eagerly anticipated and attended a Halloween party, including her RSVP message to the event page which stated “Yeah Party! You guys have the best parties. I’ll be there . . . with bells on! xoxoxo Sarah”, posts back and forth with friends discussing the upcoming party, and two photo albums posted November 1, 2008 and November 4, 2008 both entitled “Halloween2008” by Adrienne Greenwood depicting the plaintiff dressed in costume at a party with friends. The plaintiff also posted a status update on November 1, 2008 the following day that she “is chillin’ on the home front after a crazy week”. This directly contradicts the plaintiff’s testimony that in the weeks following the 2008 accident “I went to a bad place in my brain”, “that time really sucked” and “I knew something was really wrong.” It also contradicts her evidence to Dr. Rasmussen that she forced herself to attend these events in order to combat feelings of discouragement and withdrawal, and that her enjoyment of these activities was “limited”. She also appears to have attended numerous other events during that time period, but as these are only evidenced by confirmed Facebook event RSVPs and status updates rather than photographs, I will not place as much weight on those events.

c) Postings by the plaintiff to her Facebook page continued through 2009 however indicated a much less active social life. The plaintiff acknowledged it was during a period when she was having a very difficult pregnancy which, from the plaintiff’s description, did interfere with her social life, and was also the time of the alleged assault by Mr. Dyer following which the police were involved and soon thereafter the engagement and close relationship between them ended. It strikes me as odd that the plaintiff’s social media activity during this time seems to directly correspond with her reported life circumstances and state of mind, ie. she was having a difficult time so she was less active on Facebook, but her Facebook activity did not appear to diminish immediately following the 2008 accident, despite her testimony that this was a very dark time in her life and the evidence that this was the triggering incident for the PTSD that was diagnosed by the various experts.

d) The plaintiff’s Facebook posts continued through 2010 and 2011 with somewhat less frequency and enthusiasm than the 2008 posts, though it is natural that a person raising a small child would have to make adjustments to her social activities compared to the extent of her social life prior to her pregnancy. What is notable is that the plaintiff still continued to have relatively numerous posts from friends and photos of events she attended, and there was no notable change in the Facebook activity or posts immediately following the 2010 accident on September 3. I can only make conjectural conclusions from this evidence, so I will not place significant weight on the 2010 posts, but I nonetheless note the absence of a change to her social media behaviour following the 2010 accident.

In summary, Mr. Justice Jenkins found that the Plaintiff was not a credible person and concluded, at para. 174:

that based on this Facebook evidence, in particular the photos of continued attendance at social events and posts from friends, that the plaintiff had a very active social life following the 2008 and 2010 accidents. The social life portrayed by her Facebook profile is consistent with the social life of someone who went through three engagements, the birth of a child, and a marriage. It is completely inconsistent with the evidence the plaintiff gave at trial and to the experts that she was a “homebody” whose “life sucked” and “only had friends on the internet”.

[Emphasis added]

The lesson to be learned from this case is “be careful what you post on Facebook, even if it is an optimistic misrepresentation of your real life, because it ‘can and will be used against you in the Court of law’”.

Fortunately for the Plaintiff, the B.C. Court of Appeal, in Tambosso v. Holmes, 2016 BCCA 373, ordered a new trial based on a successful appeal so she may get another chance to militate the negative impact her Facebook entries had on her case.

PERSONAL INJURY CLAIMS AGAINST POLICE OFFICERS FOR NEGLIGENCE

The B.C. Court of Appeal released reasons for judgement in Aitken v. Bethel, which dramatically changed the law in British Columbia in claims against police officers for negligent driving in the course of their duties.

By way of background, for technical, historical reasons that are set out in the decision, police officers were protected from personal liability for negligent driving in the course of their duties, as long as their negligence was not “gross”. Earlier case law made it clear that “gross” negligence was very difficult to prove and reserved for extreme cases approaching recklessness.

But where someone was injured as a result of simple negligence of a police officer in the course of his duties, a mechanism was provided so that victims could be fairly compensated for their injuries and losses.

As a result, the Police Act was passed by the B.C. legislature, allowing injured victims to sue the Minister of Public Safety (currently the Minister of Justice) for the compensation they deserved as a result of the negligence of the police officer in the course of their duties. (Note that the Police Act does not deal with the negligence of off duty police officers, who are subject to the same claims as any other motorist).

In Aitken v. Bethel, the seriously injured Plaintiff was working as an employed landscaper at the time of the accident, and as a result, would have been entitled to W.C.B. benefits.

Instead, the Plaintiff elected to sue the police for negligence arising from a police pursuit of a crime suspect, likely because there is no award for pain and suffering in a W.C.B. claim, and many claimants prefer the Courts to the bureaucratic process of W.C.B.

The difficulty in such cases is that injured workers are prohibited from suing most employers or fellow workers for negligence by the Worker’s Compensation Act of B.C. The reasoning behind that policy is that workers give up their right to sue in exchange for the right to compensation, which they receive whether the employer or fellow worker is negligent or not, and at least theoretically, compensation is provided quicker than through the Courts.

Up until the Aitken v. Bethel decision of the Court of Appeal, it was already decided that the Minister of Public Safety (currently Minister of Justice) was not an “employer” as defined in the Worker’s Compensation Act, so the claims by “workers” against a negligent police officer were permitted to proceed through the Courts. In fact, those decisions by the Worker’s Compensation Board were strongly protected from interference by the Courts by the Provincial legislature describing their right to make such decisions as within their sole jurisdiction (known as a “privative” clause).

Aitken v. Bethel involved another attempt by the Department of Justice lawyers by application to the Worker’s Compensation Appeal Tribunal (“W.C.A.T.”) to get W.C.B. to rule that the Minister was an “employer” and the case could not be pursued in the Courts. W.C.A.T. again ruled that the Minister of Justice was not an “employer”, and that ruling was upheld by the Supreme Court of B.C.

The Court of Appeal did not challenge the right of W.C.B. to decide that the Minister was an “employer” for W.C.B. purposes. Instead, it found that the Minister was not the “real” Defendant in the case. The Court found that he was just a nominee for the real Defendant, which was the government of British Columbia. As W.C.A.T. had already ruled that the government of B.C. was an “employer”, the case was barred against the “real” Defendant.

The troubling part of this decision is that the case was against the federally employed R.C.M.P. officers. It might have been assumed that the “real” Defendant was the Federal government, not the Provincial government, as the complex financial arrangements between the respective governments were not explored in the case.

For example, in B.C., approximately 90% of the R.C.M.P. salaries are paid by the municipality hosting the R.C.M.P. but the Federal government pays about 10% of those costs. Different arrangements are made for capital expenditures.

But the R.C.M.P. is still considered the employer of the R.C.M.P. officers (unlike a few municipalities like Vancouver and Delta where the municipality has its own police force separate from the R.C.M.P.), and the R.C.M.P. vehicles are usually registered to the Government of Canada.

What is not clear is who ultimately pays civil claims against R.C.M.P. officers – is it the Federal government, directly or indirectly, or the taxpayers of B.C.? Even if it is the latter, is the government of B.C. directly or indirectly compensated for these settlements, by the Federal government or the R.C.M.P.? It is respectfully submitted that more evidence and argument should have been made available to the B.C. Court of Appeal before deciding who the “real” Defendant in the case was because it is also settled law that claims against employees of the Federal government are not barred by W.C.B.

As a result, if it was determined that the Federal government was the “real” Defendant, Aitken could have proceeded through the Courts to a substantial judgment for the Plaintiff, instead of having his case dismissed.

HIT AND RUN ACCIDENTS

Duties of a Driver involved in a Hit and Run

Did you know that if you are injured in a hit and run accident, you have a duty to take certain steps to ascertain the identity of the unidentified driver who hit you. More precisely, you must take all “reasonable efforts” to ascertain the identity of the unknown driver and/or owner of the vehicle that caused the accident.

If you fail to fulfill that duty, ICBC will argue your claim should be dismissed because you failed to take all reasonable efforts. This is because under s. 24(5) if the Insurance (Vehicle) Act a plaintiff in an action against ICBC in a hit and run accident will not be able to obtain a judgment against ICBC unless the court is satisfied all “reasonable efforts” have been made to discover the identity of the unknown owner and/or unknown driver.

There are clear reporting requirements under section 24. One requirement is that you give written notice to ICBC of the accident as reasonably practicable as possible, but no later than six months after the accident. The courts have interpreted this provision as requiring a motorist to give ICBC notice within days of the accident unless for some reason your injuries preclude you from doing so. If you fail to give proper notice under section 24, you may not have any right to sue ICBC after the expiry of six months.

Also, it is important to note ICBC adjusters are not obligated to advise a plaintiff of what other steps he/she must take to discover the identity of the driver. The legislation places the onus on the plaintiff, not ICBC.

What Are “Reasonable Efforts”?

In a recent case (Morris v. Doe, 2011 BCSC 253), the court considered the following steps to constitute “reasonable efforts”:

Depending on the plaintiff’s condition, obtaining a licence plate number at the time of the accident where there is an opportunity to do so or obtaining information as to the driver’s identity, personally or through the assistance of others is reasonable. If the plaintiff is in shock, confused or injured, it may be unrealistic to obtain this information.

  1. Notifying the police and ICBC of the accident and following up with the police in their investigation. The responsibility to find the unidentified driver is on the plaintiff, not on the police.
  2. Posting signs at the scene of the accident or placing advertisements in the local newspapers to find witnesses within a reasonable time after the accident where the accident occurred.
  3. Failing to post signs with sufficient detail of the accident may result in a denial of coverage. However, posting signs and advertising in newspapers may not be reasonable steps to undertake when the accident occurred on a high speed area of the highway or sparsely populated areas.
  4. Repeatedly canvassing regular patrons of the businesses if the plaintiff’s vehicle was damaged in the parking lot of business.
  5. Making a timely report to the police and following up on available information from the scene such as information in the possession of ambulance personnel who attended the scene.
  6. Obtaining information from the offending driver despite the fact it later turns out to be untruthful will not foreclose a plaintiff’s claim.
  7. Following directions to post signs for witnesses or advertise in newspapers if it is discovered the recorded licence plate is incorrect.

What constitutes reasonable steps varies with the circumstances of each case. What is “reasonable” has been interpreted as “logical, sensible, and fair”. It does not include efforts that are “absurb, whimsical or unwarranted”.

Important Factors relating to “Reasonable Efforts”

The court considers two time periods relevant under s. 24(5) of the Act regarding unidentified drivers:

  1. the time of the accident;
  2. the days or weeks following the accident.

If reasonable efforts could not be made at the time of the accident due to a plaintiff’s shock or injury, or the driver fled the scene before information could be obtained, the court will examine what steps a plaintiff took to identify the negligent driver in the days or weeks following the accident.

While ICBC may deny a plaintiff’s hit and run claim for failing to take “reasonable steps”, the Courts have affirmed that it is a factual issue which must be decided on a case by case basis. The question the Courts must answer in determining whether a plaintiff can recover under s. 24(5) of the Act, is whether “all reasonable efforts have been made taking into consideration the plaintiff’s circumstances at the time of the accident on a cost-benefit analysis.” In other words, were the plaintiff’s efforts to ascertain the identity of the driver reasonable in the circumstances? This principle was recently affirmed in British Columbia Court of Appeal, Nicholls v. Insurance Corporation of British Columbia, 2011 BCCA 422.

Dealing with ICBC on unidentified driver claims in hit and run accidents can result in serious consequences, including dismissal of legitimate and serious injury claims if the proper steps are not followed to comply with the legislation outlined in this blog. To ensure you have a proper analysis of what reasonable steps you need to take, it is important you retain a lawyer as soon as possible to assist you. At Caissie & Company, we have experience representing plaintiffs in hit and run accidents and considering the reasonable steps that need to be taken in each individual case because every case is different. If you or a family member or friend has been involved in a hit and run accident in which the identity of the driver/owner remains unknown, it is imperative you or they make an appointment to come and see us immediately to discuss the claim.