Facebook Photographs Considered at Trial
In the case CIKOJEVIC V. TIMM, 2010 BCSC 800 (“CIKOJEVIC”), released June 8, 2010, the Court considered the evidentiary role of photographs which were downloaded from the Plaintiff’s Facebook page.
The cause of action in CIKOJEVIC arose out of a mild traumatic brain injury and soft tissue injuries suffered in a motor vehicle accident in August 2002. The Plaintiff, who had just turned 17 at the time, had her head thrown “into the windshield hard enough to star it”.
The Defendant in this case entered into evidence a “large” binder of photographs obtained through the Plaintiff’s Facebook page. These photographs were intended to establish that the Plaintiff’s neck and back injuries were not as severe as claimed. The Court devoted multiple paragraphs to an analysis of these photographs under the heading “Facebook Photographs and Surveillance Videos”.
Some of the Facebook photographs depicted the Plaintiff climbing and hanging off of a climbing wall; the Defendant argued that these pictures established that the alleged back problems were not as serious as claimed. The Court proceeded to examine the photographs in the context of the medical evidence, which suggested that the positions shown in the photographs would not necessarily have aggravated the Plaintiff’s back pain.
The Court then went on to examine other photographs depicting the Plaintiff preparing to bungee jump. Given that the Plaintiff suffered from back problems, the Court held that the scenario depicted in the photographs “calls her judgment into question”, but aside from this comment did not consider the photographs in evaluating the Plaintiff’s injuries.
The Court held at paras. 122-124 that:
In short, the photographs largely depict people in their twenties enjoying themselves. Witness evidence places them in their wider context. In my view, the photographs do not contradict or surmount testimony and medical evidence about the nature and extent of the plaintiff’s neck and back injuries.
However, while it is true that even unhappy people usually smile when photographed, the Facebook photographs do confirm the plaintiff has been able to enjoy herself socially on various occasions in recent years. This distinguishes the plaintiff’s case from those where plaintiffs react to their limitations by becoming chronically depressed, isolated and idle.
Still, the fact remains the plaintiff suffered serious depression and continues to struggle against a recurrence. I accept she is extroverted by nature, and purposefully tries to keep active to hold the depression at bay and as a way to force her way through her problems, as Dr. Lewington and other experts explained. In my view, the Facebook photographs should be viewed within this context.
The Court in CIKOJEVIC ultimately held that the Facebook photographs had to be viewed in the context of the medical evidence and witness testimony. While the Court acknowledged the fact that social media can provide insight into how plaintiffs respond to their “limitations”, the appearance of happiness or contentment in the context of social media was ultimately given limited weight in a case where extensive medical and expert evidence was also available.
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