Social Media is increasingly being used in confirming or refuting a person’s severity of injury in personal injury claims. What this means for the public, specifically anyone who was injured and is seeking compensation for their injury, is that anything that’s posted on Facebook, twitter and other social media sites may be used as evidence against the injured person. When large amounts of money are potentially at stake, insurance companies often pay investigators to videotape claimants as they go about their day to day activities. They also look at photos and comments that were posted on social media for any postings that create doubt and question the credibility of a person’s claim that their lives were negatively impacted by their injuries. This means that accident victims need to be extremely cautious about what they say and post on social media.
One case that has received significant public interest in terms of the role of social media in deciding the case, is a trial involving a woman, Sarah Tambosso, who was involved in two car accidents and sought damages for her injuries. In Tambosso v. Holmes, 2015, the B.C. Supreme Court judge found the defendant driver of the first accident (which occurred in 2008) negligent and responsible for the plaintiff’s damages that may flow from the accident. For the second accident (occurring in 2010), the defendant driver readily admitted liability in causing that collision. The key issues at question in this trial were the severity of the plaintiff’s injuries and the appropriate damages. Ms.Tambosso sought non-pecuniary damages for her pain and suffering, past and future loss of income, future care costs and special damages.
Evidence presented by the defendants in the 2015 trial included video surveillance as well as almost 200 pages from Ms. Tambosso’s Facebook account. On Facebook, the plaintiff was seen participating in various activities, such as drinking and river tubing with friends, performing karaoke, attending parties, and so on. The judge asserted that this evidence was inconsistent with the plaintiff’s testimony that her life was completely altered by her injuries, which were alleged as: pain in her neck, back, jaw, hips and legs; as well as cognitive and psychological injuries, including depression, post-traumatic stress disorder (PTSD) and mild traumatic brain injury. The judge agreed with the defence’s argument that the social media evidence challenged the plaintiff’s credibility in describing her injuries. Rather than accepting the plaintiff’s testimony about her feelings of depression, anxiety and chronic pain, or the medical evidence of several psychiatrists and others who provided statements on behalf of the plaintiff, the judge stated that Ms. Tambosso’s credibility was the most significant issue affecting his decision.
There were three key evidence submissions which the judge referenced as pointing to a lack of credibility on the part of the plaintiff, and ultimately, influenced the judge’s decision in this case. The first was his disbelief in the plaintiff’s account of the effects of the 2008 accident; specifically, when the plaintiff said that, after the defendant driver attempted to pass her car at high speed on the right shoulder of the highway, she looked into the driver’s eyes and the stress of the event triggered her PTSD and other psychological symptoms. The second evidence that challenged the plaintiff’s credibility for the judge was video surveillance that recorded her running, rollerblading, lifting her young son and carrying groceries without apparent pain, and other actions in which she did not display the stiffness that she showed during the trial. Finally, the judge also accepted evidence from the plaintiff’s Facebook posting, that showed her actively involved in many activities and seemingly having a lot of fun, in the weeks and months following the 2008 accident. The latter evidence, he felt, contradicted Ms. Tambosso’s comments to her physician, where she said she was forcing herself to participate in events “to combat feelings of discouragement and withdrawal” but didn’t really enjoy herself. The judge concluded that the plaintiff’s Facebook postings were inconsistent with her testimony at trial and with her statements to the medical experts, such as: that she was a “homebody”, her “life sucked”, and her only friends were on the internet.
The judge’s view that the plaintiff’s account of her injuries and suffering was not credible had a substantial impact on his perception of the plaintiff’s losses. He concluded that there was little evidence that she suffered much pain from her soft tissue injuries and doubted that she suffered from PTSD, despite the physicians’ corroborating report. As a result of his disbelief that she was suffering from PTSD due to the car accidents, the judge dismissed the over $42,000 charged by the physician treating her for PTSD. The judge surmised that the plaintiff’s injuries healed within three or four months of her 2008 accident, and within two months of the 2010 accident. Further, he believed that these accidents did not prevent her from returning to work in the future. Based on these conclusions, the plaintiff was awarded only a small amount in damages: $25,000 in non-pecuniary damages, $10,450 for past loss of income, zero for future loss of income, and $592.30 in special damages.
In 2016, Sarah Tambosso appealed the trial judge’s 2015 decision, on the basis that the trial judge misinterpreted the evidence that was presented. The B.C. Court of Appeal agreed with Ms. Tambosso, allowed the appeal and ordered a new trial. The Court of Appeal’s reasons for their decision included the fact that there was abundant evidence presented in the 2015 trial that was largely ignored by the trial judge in assessing the plaintiff’s post-accident condition, such as the 15 witnesses that corroborated Ms. Tambosso’s story. Also, the trial judge did not accept the opinions of any of the plaintiff’s medical experts because he believed they were largely founded on her version of the events (which he disbelieved), but in doing so, he also did not consider the evidence of two physicians who had conducted tests which included measures of validity. The trial judge’s misapprehension of evidence greatly affected, even biased him, in his analysis of the evidence from medical experts. The Appeal judge acknowledged that there were credibility issues with the plaintiff, even beyond the surveillance and Facebook evidence; however, when taken as a whole, the trial judge’s errors in his assessment of the evidence were of such significance as to require the ordering of a new trial.
Although the civil action in Tambosso v. Holmes has yet to be resolved, what was made clear in this case is that social media and surveillance evidence may be given substantial weight in supporting or contradicting a plaintiff’s evidence of their injuries. Certainly, whether or not a plaintiff is perceived as credible by a judge or jury greatly impacts whether their testimony carries any weight in substantiating their injuries and ultimately, whether or not a case is won. This is particularly true when an accident victim sustains injuries that are more difficult to measure through objective medical tests, such as soft-tissue injuries, concussion, chronic pain and psychological injuries. When an accident victim’s testimony is perceived as consistent, forthright and credible, the court is likely to accept that their account of injuries and pain to their physicians and therapists is also credible, but the reverse is true when a plaintiff, such in the current case, is not believed to be truthful.
One of the concerns with regards to using social media as evidence is that postings often don’t reflect the true state of mind of an individual. There’s a tendency to post amusing and fun activities on social media sites because we want to be perceived as happy and fun people and also, it’s generally assumed that’s what our friends and family are interested in seeing. However, the image we post on Facebook and other social media may not reflect how we really feel, particularly for people who are suffering from depression and other psychological or emotional conditions. Therefore, the validity of using social media posts as evidence in a trial is questionable and will likely be challenged in future case law. Nevertheless, it’s likely that social media posts may be used to contribute to a picture of a plaintiff’s wellness, in the context of all the evidence presented.
In the interests of caution, if you were injured in an accident and are considering filing a claim for compensation, avoid making any social media posts. Even a picture of a smiling face may be misconstrued as an indicator that the injured person couldn’t be suffering from pain or a psychological condition.
If you or a loved one were injured in an accident resulting from negligence, and are seeking expert representation, call the experienced lawyers at Kotak Injury Law.