Don’t Post and Plead
The Impact of Social Media Posts in Personal Injury Cases
Imagine what went through the mind of the lawyer for the plaintiff in the 2015 BC Supreme Court case
Tombasso v Holmes. The argument all along had focused on injuries suffered by a young woman as a
result of two motor vehicle accidents. Injuries that included depression had left the claimant “scared to
go outside,” and in a state where she had even “stopped seeing her friends.”
Then the defense entered her Facebook page into her evidence—194 entries to be exact. Status
updates, photographs, and other posts showed her engaged in activities that included snowboarding,
hiking, water tubing, and partying with friends.
It sure didn’t look like her she was suffering.
When addressing the court, Justice Jenkins J noted that the statements by Ms. Tambosso “are simply
not true….” As a result, the plaintiff received no damages. The judge also awarded special costs against
the plaintiff for her “ongoing effort to deceive the court”.
The lesson for plaintiffs, family, and friends is clear. During the course of personal injury litigation, avoid
posting pictures on social media.
Insurance companies routinely check social media sites during the course of litigation
It has become an increasingly common practice of insurance companies to search a plaintiff’s Facebook,
Twitter, or Instagram to find publicly-accessible evidence. While social media sharers only intend their
pictures and videos to be seen by friends and family, insurance companies are often part of a wider
audience. By make social media posts, you are essentially providing opposing parties with access to
evidence of your daily activity. Social media posts are date-stamped , which allow an investigating
litigator to determine exactly where a claimant was or what they were doing at a particular time.
Social media can cause problems for those seeking damages, no matter what kind of posts are made.
Social media posts depicting images an injured plaintiff have also become a problematic aspect of
personal injury. Posts by the plaintiff, family, or friends may contradict the plaintiff’s own evidence
about how life has changed since the accident. This could be enough to persuade an adjuster, lawyer,
judge, or jury to reduce a potential award, or to abandon the finding of an award altogether.
This certainly was true in the above mentioned BC case Tombasso v Holmes [2015] BCJ No 437. The
extensive information from the plaintiff’s Facebook page entered by the defense counsel indicating a
healthy, happy, and socially active lifestyle was a stark comparison to the plaintiff’s evidence in court.
Smart choices in a social media world
We live in a world that loves using social media, and Canadians, in particular, love Facebook. The latest
2016 Stats Canada result show that 71% of Canadians visit Facebook at least once a week (followed by
YouTube and Twitter in popularity.) There is no sign of this abating. In Canada, more than 20 million
people are expected to have a social network account by 2018.
Smiling faces on a screen, contradicting updates, activities or locations that raise questions; if you post
on social media, you run the risk of misinterpretation because these pictures may portray a desired
appearance or a snapshot in time. Social media posts are a variable that allow for a wide margin for
interpretation. This can be detrimental to your personal injury claim, making it more difficult or even
impossible to reverse what now seems obvious to the viewer.
