It has become a cliché: person claims employee benefits or insurance proceeds arising from some kind of accident, then posts holiday snaps on Facebook showing him or her lounging by the pool or engaging in some vigorous activity, with the result that compensation is denied or clawed back. The case for denying compensation on that basis has failed, however, in two recent cases: Dakin v Roth, 2013 BCSC 8, and Stewart v Kempster, 2012 ONSC 7236.
In Dakin, the plaintiff appeared to have exaggerated some of her injuries, but the judge was not prepared to buy the argument that the vacation photographs she had posted on her Facebook page were necessarily inconsistent with her physical limitations. The judge in Stewart put it more colourfully: ‘I am not persuaded that the photographs in question have any real relevance to the issues in this case. I quite agree that if there were photographs that showed the plaintiff water-skiing or rock climbing, they would be relevant to demonstrate the extent of her physical limitations following the accident. The photographs in question, though, say nothing about the physical limitations she is suffering from. An injured person and a perfectly healthy person are equally capable of sitting by a pool in Mexico with a pina colada in hand. A photograph of such activity has no probative value.’