Social Media Postings Can Ruin YOUR Claim

Ruin YOUR Claim

Social Media Postings Can Ruin YOUR Claim. Although a personal injury case, the decision Tambosso v Holmes 2015 BCSC 359, demonstrated  that between a combination of video surveillance and 194 pages of Facebook entries, that the plaintiff’s claim was exaggerated and in total contradiction to the evidence that she provided to her care practitioners.

She received almost nominal damages from the nonbelieving trial judge, rather than the much larger award that she expected but for her lack of credibility.

The case referred to a 2010 Alberta court decision where a judge cautioned that such social media entries may contain “an overly positive perspective regarding one’s abilities and interests for a certain amount of puffery.”

The recent BC case did not appear to follow that suggested latitude in interpreting social media entries

Prospective clients in  estate claims are equally vulnerable in family disputes due to social media postings often made in times of anger, estrangement, or misunderstanding.

There is that entire concept of once said, it is there forever that must be considered in estate/family matters. It simply is very difficult to overcome hurt, abuse, and  hurtful remarks.

I had one estate claim where through Facebook I was able to show that the plaintiff had commenced numerous fraudulent claims in other jurisdictions. It undermined her entire credibility with respect to her claim due to her intended disinheritance by her parents.

The judge made the following comments in the Tombosso case about Facebook postings:

Facebook Postings

[170]     Throughout her evidence, the plaintiff testified that as a result of the PTSD and stress suffered as a result of the aftermath of the 2008 accident, her life completely changed from that of a vibrant, outgoing, industrious, ambitious, physically active, progressive and healthy young woman to that of a housebound, depressed, lethargic, forgetful, unmotivated woman who is unable to concentrate, cannot work, has friends only on the internet and whose “life sucks”.

[171]     One hundred and ninety-four pages of Facebook entries from her Facebook page posted between May 7, 2007and July, 2011 were entered in evidence following an order for production by Master Tokarek in August 2011. There are extensive status updates, photographs, and other posts to the plaintiff’s Facebook page that at face value appear to directly contradict her evidence regarding her alleged injuries, and her state of mind following the 2008 accident in particular. All of the posts were included in Ex. 1, Tab 1.

[172]     It was submitted in argument that persons posting the events of their life on social media tend to post positive events and activities to portray themselves as “social” and avoid posting negative thoughts, events and news. There is no opinion evidence to support this submission, but I nonetheless approach the Facebook evidence with caution. However, even given potential frailties with this evidence I find there are numerous examples that buttress my findings on the plaintiff’s credibility.

[173]     Examples of postings of the plaintiff on Facebook which conflict with the evidence of the plaintiff are many; I highlight some examples which are included in the Facebook pages found at Ex. 1, Tab 1:

a)    The plaintiff testified that she loved her position as front desk manager at the Summit Lodge and Spa, was performing well and putting in extra hours, was intending to make a career out of work in the hospitality industry and expected to be able to manage the hotel or other hotels in the future. Her  manager for most of her time at the Summit, Ms. Camilla Say, was not so complimentary, saying the plaintiff was “great initially at fulfilling her duties”, started to struggle towards the end of winter as the job was high stress and by the spring of 2008 she “was not enjoying the job” and “was moody, short tempered”. Ms. Say continued that there had been staff complaints, “she was gone at times” and as to whether the plaintiff was management material, Ms. Say’s response was “she was fairly young, not loving the hours, and therefore would say she is not management material”. Facebook postings by the plaintiff reflected the stress of the job, and included posts on February 5, 2008 that she “is feeling over worked and under…”, on February 9, 2008 that she “could duplicate herself so work would be easier…” and on May 16, 2008 that she “is wishing work didn’t interfere with life…” These Facebook postings reflect the evidence of Ms. Say, not the trial evidence of Ms. Tambosso.

Facebook postings indicated that the plaintiff quickly returned to join her friends in social events following the 2008 accident. On July 29, 2008 and August 6, 2008, mere weeks after the 2008 accident, Ms. Tambosso was tagged in photo albums entitled “Kerri’s Stagette” and “Kerri’s Stag Part 2” that depict her drinking with friends and river tubing near Penticton. Similarly, numerous posts from October 2008 indicate the plaintiff eagerly anticipated and attended a Halloween party, including her RSVP message to the event page which stated “Yeah Party! You guys have the best parties. I’ll be there  . . . with bells on!  xoxoxo Sarah”, posts back and forth with friends discussing the upcoming party, and two photo albums posted November 1, 2008 and November 4, 2008 both entitled “Halloween2008” by Adrienne Greenwood depicting the plaintiff dressed in costume at a party with friends. The plaintiff also posted a status update on November 1, 2008 the following day that she “is chillin’ on the home front after a crazy week”. This directly contradicts the plaintiff’s testimony that in the weeks following the 2008 accident “I went to a bad place in my brain”, “that time really sucked” and “I knew something was really wrong.” It also contradicts her evidence to Dr. Rasmussen that she forced herself to attend these events in order to combat feelings of discouragement and withdrawal, and that her enjoyment of these activities was “limited”. She also appears to have attended numerous other events during that time period, but as these are only evidenced by confirmed Facebook event RSVPs and status updates rather than photographs, I will not place as much weight on those events.

b)    Postings by the plaintiff to her Facebook page continued through 2009 however indicated a much less active social life. The plaintiff acknowledged it was during a period when she was having a very difficult pregnancy which, from the plaintiff’s description, did interfere with her social life, and was also the time of the alleged assault by Mr. Dyer following which the police were involved and soon thereafter the engagement and close relationship between them ended. It strikes me as odd that the plaintiff’s social media activity during this time seems to directly correspond with her reported life circumstances and state of mind, ie. she was having a difficult time so she was less active on Facebook, but her Facebook activity did not appear to diminish immediately following the 2008 accident, despite her testimony that this was a very dark time in her life and the evidence that this was the triggering incident for the PTSD that was diagnosed by the various experts.

c)     The plaintiff’s Facebook posts continued through 2010 and 2011with somewhat less frequency and enthusiasm than the 2008 posts, though it is natural that a person raising a small child would have to make adjustments to her social activities compared to the extent of her social life prior to her pregnancy. What is notable is that the plaintiff still continued to have relatively numerous posts from friends and photos of events she attended, and there was no notable change in the Facebook activity or posts immediately following the 2010 accident on September 3. I can only make conjectural conclusions from this evidence, so I will not place significant weight on the 2010 posts, but I nonetheless note the absence of a change to her social media behaviour following the 2010 accident.

[174]     I conclude that based on this Facebook evidence, in particular the photos of continued attendance at social events and posts from friends, that the plaintiff had a very active social life following the 2008 and 2010 accidents. The social life portrayed by her Facebook profile is consistent with the social life of someone who went through three engagements, the birth of a child, and a marriage. It is completely inconsistent with the evidence the plaintiff gave at trial and to the experts that she was a “homebody” whose “life sucked” and “only had friends on the internet

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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