Facebook Defence Strikes Again – Lawsuit Claims Defeated

In personal injury lawsuits, the internet is being checked for personal information about plaintiffs in order to test allegations of impairment.  See our previous blog entry for a recent Ontario case involving a Facebook defence.

In the Newfoundland case of Terry v. Mullowney, (2009 Newfoundland Trial Division), the plaintiff was a 28 year old male mechanic, single, who suffered soft tissue injuries from two car accidents.  He complained of neck, shoulder and back pain, along with pain radiating into arms and legs.

He put personal information on his Facebook page which contradicted his claims of personal injury.  That is, he told doctors and others that he was in pain and not socially active; his Facebook page told a different story.

The plaintiff claimed that he was unable to work and that his social life was greatly curtailed after the accident.  He sought between $500,000 to $1.3M for future and past income loss, future care costs, housekeeping and pain and suffering damages.

The Trial Judge found the plaintiff to lack credibility and in particular noted the plaintiff’s: (1) Facebook account; and (2) activities caught on surveillance.  On surveillance, the plaintiff appeared to be working as a mechanic on a vehicle during a time when he otherwise had indicated that he was injured and not working.

Regarding the plaintiff’s Facebook account, the case states:

[102]  Mr. Terry claimed that his social life had been severely curtailed by the effects of the motor vehicle accidents.  He said he was no longer able to play pool with his friends and he essentially had little or no social life, except the occasional weekend outing. 

[103]  Counsel for the defendants confronted Mr. Terry on cross-examination with printout excerpts from the internet social interaction website known as Facebook on which Mr. Terry had an account.  This website allows people to exchange personal information about their activities, lifestyle and interests, including photographs and contact information.  Mr. Terry’s account was accessible by any member of the public. 

[104]  While not getting into the details of these excerpts, they convince me that Mr. Terry (at least in the few months just prior to his testimony in Court recorded on Facebook) had a rather full and active social life.  He went to and hosted parties, attended weekend outings at summer cabins, drank alcohol frequently, smoked marijuana daily and appeared to have a number of friends with whom he communicated and socialized on a regular basis.  I find it incredible that Mr. Terry’s social life miraculously improved in the few months he was communicating on Facebook and that for the remainder of the time from 2001 to 2007 he essentially had no or little social life. 

[105]  Without this evidence, I would have been left with a very different impression of Mr. Terry’s social life.  He admitted as much in cross-examination.  After he was confronted with this information which is publicly accessible, he shut down his Facebook account saying he did it because he didn’t want “any incriminating information” in Court.  I draw an adverse inference against Mr. Terry on account of this statement and conclude that the Facebook account which he shut down and some particular messages which he deleted prior to shutting down the account entirely contained information which would have damaged his claim. 

While the Trial Judge awarded the plaintiff $40,000 for pain and suffering damages, the remainder of his claims were dismissed.
Gregory Chang
Toronto Insurance Litigation Lawyer