We live in an era where technological advances are continuously available to consumers, ostensibly with the goal of making ake their lives easier and keeping them digitally connected. Depending on who you speak to, there are varying opinions on the use of social media platforms. Issues of privacy have been a concern for many with regards to social media and we are seeing the impact it can have on personal injury cases.
From Facebook to Twitter, people use these sites to update their families and friends of events in their lives. However, one should be careful because pictures and information can easily be misconstrued by insurance companies and defence counsel and used against you in your case.
The 2007 case of Kourtesis v. Joris sheds light on this issue, when lawyers for an insurance company used evidence gathered from a social media website to contradict the plaintiff’s claim of compensation for pain and suffering. Fotini Kourtesis was only 18 years old when in December of 2000 she was involved in a rear-end collision while driving with her brother.
Ms. Kourtesis was wearing a seatbelt at the time and was the only one who claimed to have suffered an injury. Her listed symptoms included fatigue, headaches, a sore neck, pain and tingling in her left arm, constant flare-ups of pain and difficulty maintaining concentration, which was all consistent with that type of injury. She sought general damages of $45,000 based on the fact that her injuries impeded her from having a normal social life as a result of the pain and suffering.
In December of 2006, photographs were presented by the defence, which included a few from vacations that Ms. Kourtesis took in 2003 and 2004. They were mostly of celebratory times which seemed to contradict Ms. Kourtesis’ claim that she could no longer partake in such activities. When allowed to explain the nature of the pictures, she claimed that they were mostly posed and were not a true reflection of how she felt at the time. The judge found her explanation lacking, because while she may have just been posed in the pictures, they were still taken in a social setting in which she seemed to be an active part of. Ms. Kourtesis’ claim for general damages was subsequently dismissed.
People tend to share on social media pictures of their happy and joyous moments, and so these sites do not offer a true reflection of a person's life. Instead, they offer snapshots in time from family gatherings, weddings, birthday parties, etc.These images are often used against an individual in their personal injury case to try to convince juries and judges that the person is not as injured as they say.
Insurance companies may also sometimes attempt to use surveillance footage as evidence in proving the exaggeration or complete fabrication of a client’s injuries and to undermine the credibility of a plaintiff. This was the case in Iannarella v. Corbett where the plaintiff Mr. Iannarella, after being rear-ended by a concrete mixer driven by Mr. Corbett, claimed to have suffered a severe rotator cuff injury to his left shoulder.
During the initial trial, the defendant’s lawyer ambushed the plaintiff during his cross-examination with surveillance footage, which challenged the plaintiff’s injury claims. Although the video had not been previewed by the judge for relevance or impeachment value, nor did it go through the mandated chain of admission (affidavit of documents), it was accepted as evidence. The Court of Appeal for Ontario overturned the lower court’s decision to accept the surveillance videos into evidence because of the failure of the defence lawyer to comply with timely disclosure obligations.
This decision by the Court of Appeal for Ontario has now set precedent for the special conditions and limitations surrounding the introduction and applicable use of surveillance evidence in personal injury cases. Ontario’s Rules of Procedure dictates that all surveillance evidence be disclosed in the early stages of the litigation process.
If you have been involved in car accident, you should speak with a personal injury lawyer as soon as possible. There are certain steps you should take in the immediate aftermath, as well as in the months and even the year after. As demonstrated in the aforementioned case, “knowing is half the battle”. The experienced and professional lawyers at Burn Tucker Lachaîne can help guide you through this process.
Have your case assessed with a free consultation by the knowledgeable and experienced personal injury lawyers at Burn Tucker Lachaîne. A proud member of the Injury Lawyers of Ontario, our Ottawa personal injury lawyers are empathetic and accommodating and offer services in both English and French. Call or visit us online today.
|By Laurie Tucker of Burn Tucker Lachaîne LLP Personal Injury Lawyers on February 19, 2016|
|Tags: Free Consultation, Personal Injury, Serious Injury|