In Bagasbas v Atwal, the Plaintiff alleged that she could not participate in certain sporting activities, however the lawyer for ICBC produced photographs from her Facebook page that contradicted her position. This had an effect on the amount of damages awarded to the Plaintiff.
[5] The evidence disclosed that the only pre-accident activity which the plaintiff has given up for the time being is running. She said she could no longer kayak, hike or bicycle, but the defendant produced some of the plaintiff’s own photographs posted on her Facebook page that showed her doing these activities. There was no evidence of decreased capacity to perform household or work related chores. The plaintiff and her husband testified that if the plaintiff exerted herself, she tired more easily than before, but it was unclear whether this related to injury to her upper or lower back.
[6] The distinction between the plaintiff’s complaints of upper back and lower back injury is significant, because there was no evidence linking the upper back injury to the accident. Dr. Ladhani said there was a temporal link between the complaint of pain in the neck, shoulder and upper back regions and the accident, but in his opinion no such link existed with respect to the plaintiff’s lower back injury. Indeed, plaintiff’s counsel made it clear from the outset of trial that the plaintiff was not claiming for compensation for anything arising from her herniated disk or the condition of her lower back.
[7] The medical evidence before me was rather vague. Combining this evidence with the plaintiff’s subjective evidence of her complaints, I find that on a balance of probabilities the plaintiff suffered a mild whiplash to her right neck, shoulder and upper back in the accident of June 1, 2006. I further find that the whiplash had probably substantially resolved itself within three months. Any further complaint of pain in the fall of 2006 is not supported by the objective evidence of the plaintiff’s rather strenuous activities. The photographs of the plaintiff dancing illustrate arm, neck and back movements, executed in approximately two inch heels, that contradict any claims of restricted range of motion or significant pain in these areas. It has been said many times in many cases that the court must be careful in awarding compensation where there is little or no objective evidence of continuing injuries, or in the absence of convincing evidence that is consistent with the surrounding circumstances (Butler v. Blaylock, [1981] B.C.J. No. 31 (S.C.); Price v. Kostryba 1982 CanLII 36 (BC SC), (1982), 70 B.C.L.R. 397 (S.C.)).
