In a trial of a motor vehicle accident action, deductions for collateral benefits are determined by the trial judge after the jury’s verdict. The jury is not permitted to deduct collateral benefits in its assessment of damages.
A question then arises on whether defence counsel can cross-examine a plaintiff on the collateral benefits he or she has received. That was the issue in Farrugia v. Ahmadi et al, 2019 ONSC 4261.
The plaintiff was paid accident benefits of $1.8 million. Defence counsel argued that questions on the plaintiff’s receipt of accident benefits were relevant to the issue of whether the plaintiff mitigated her damages.
Justice Emery indicated that the law permits defence counsel to ask questions or to make reference to the receipt of accident benefits during the cross-examination of a witness when the question or reference is posed for a proper purpose.
The evidence should be accompanied by an appropriate instruction to the jury that collateral benefits will be deducted by the trial judge as a matter of law after the verdict is delivered.
Ruling and Commentary
Justice Emery would not permit defence counsel to ask questions on the totality of the accident benefits settlement. He said that questions of this nature would be prejudicial.
Further, such questions would not be relevant as they did not arise from the pleadings or prior evidence. The defendants’ pleading of failure to mitigate was overly broad, and there was no evidence in the trial that the plaintiff failed to mitigate her damages by improperly using her collateral benefits.
This is surprising since a defendant should be able to test whether a plaintiff used his or her benefits properly, thereby mitigating his or her damages, by asking the plaintiff questions on this issue.
A plaintiff is often the first witness, or one of the first witnesses, to testify at trial, so there will not necessarily be prior evidence of how the plaintiff used his or her collateral benefits. Further, the plaintiff will generally have the best knowledge of how the collateral benefits were spent.
Moreover, although questions on the totality of an accident benefits settlement may not be relevant, questions on specific benefits may be relevant to the issue of mitigation.
For example, if a plaintiff received $100,000 in medical and rehabilitation benefits, defence counsel should be able to test whether these benefits were used for treatment.
Justice Emery held that the defence counsel could ask the plaintiff questions on her receipt of caregiver expenses, attendant care expenses, and housekeeping and home maintenance expenses. The pleadings put those benefits in dispute, and the settlement of the attendant care claim was relevant due to the prior testimony of other witnesses.
This is also surprising because, even if particular expenses are in dispute, a jury need not have knowledge of the collateral benefits received by a plaintiff in order to assess tort damages.
In this author’s view, defence counsel should be able to cross-examine a plaintiff on his or her use of collateral benefits as it relates to the issue of mitigation.
However, defence counsel should not be able to ask questions on collateral benefits solely because similar heads of tort damages are being claimed. Questions for this purpose are not relevant since a jury is required to assess damages without regard to the plaintiff’s receipt of collateral benefits.