March 15, 2023 - 

John McMullin, Associate Lawyer, LETOURNEAU LLP

A lax social media account is a gold mine for an insurance company. In any personal injury case they will scour social media for pictures, videos, or other evidence that can be used to reduce or complicate personal injury claims. We’ve illustrated how this can affect client’s claims by summarizing two cases below:

Motorcycle Victim’s Rock and Roll Hustle Reduces Claim

The British Columbia personal injury case Welygan v Willms, 2013 BCSC 219, shows how drastically social media photographs can affect a personal injury claim. Ms. Welgyan was a passenger on her boyfriend’s motorcycle. He leaned the bike too far on a curve and sent them both tumbling.

Ms. Welygan claimed she had chronic pain and difficulties with her back as a result of falling from the motorcycle. She also claimed jaw pain and that her pre-existing depression and anxiety were worsened by the accident.

The judge was not convinced that Ms. Welygan had actually hurt her back. He based this opinion off of several factors, including a CPP disability application that did not include those issues and medical records.

He also based his findings on photographs put up on Facebook. Ms. Welygan joined a rock band after the accident, and there was evidence of her dancing onstage, jumping from the stage, and twisting her back during performances.

Despite finding no chronic pain or back injury, the judge found Ms. Welygan had some shoulder pain and increased mental difficulties for a time, as well as her jaw injury, and awarded $35,000.00 for pain and suffering and $5,850 for out of pocket costs. This was likely a significant decrease from what Ms. Welygan expected at trial.

Ballroom Dancer’s High Heel Photos Relevant to Action

In the Ontario personal injury case called Isacov v Schwartzberg, 2018 ONSC 5933, Ms. Isacov’s foot was run over by the defendant. This was especially difficult because Ms. Isacov was a professional ballroom dancer who, in her own opinion, experienced “tremendous devastation” at being no longer able to dance. Her doctor had advised Ms. Isacov that she could no longer wear high-heeled shoes, which is a requirement for ballroom dance.

The defence in this case was able to locate Facebook and Instagram posts of Ms. Isasov dancing with friends while wearing high heels after the accident, and they asked for further pictures from Facebook and Instagram. Ms. Isacov’s lawyers told them there was no way the pictures would be produced, and the issue of whether the pictures could be used came to Court.

The judge in the matter thoroughly reviewed the law about producing pictures on social media. He found that, as the Facebook and Instagram pages were private, there was a privacy interest in them. However, that interest was overridden because the photographs in question would clearly be relevant to Ms. Isacov’s ability to dance and wear heels.

The information in the judge’s decision makes Ms. Isacov appear like she was lying about not being able to dance or wear heels. However, the photographs of Ms. Isacov could have been completely innocent. For example, a higher floor made her look taller, leading to the conclusion she was wearing high heels. She may have tried high heels and dancing momentarily and then immediately stopped as it was too painful. Because those photographs were posted, Ms. Isacov had to deal with an unexpected challenge from the opposing insurance company when she may not have done anything suspicious.

Using social media can be extremely disruptive to a personal injury matter. It’s important to be able to catch up with friends and family, but the public nature of social media (even when making private posts) means that insurance companies can and will use social media posts to reduce claims. If you have a potential personal injury claim, be judicious on what is posted online, and talk to a lawyer at LETOURNEAU LLP about other ways to protect your claim. 

If you have been in a bicycle or car accident, it's a great idea to speak to a personal injury lawyer about your rights and responsibilities. Contact LETOURNEAU LLP at 403-329-4311 to set up a free consultation for any accident-related injury.

Learn more about John McMullin, our Lethbridge Personal Injury Lawyer.

Learn more about Personal Injury Law from our Lethbridge law firm website www.LeLaw.ca.

This article is for information purposes only and does not constitute legal advice.