From: Lionel Smith, Prof. <lionel.smith@mcgill.ca>
To: Harrington Matthew P. <matthew.p.harrington@umontreal.ca>
obligations@uwo.ca
Date: 16/02/2015 17:17:15 UTC
Subject: Re: Imposing a trust on damage awards - unjust enrichment

Hi Matt,

You might find this study to be a good starting point: Simone Degeling,
Restitutionary Rights to Share in Damages

http://www.cambridge.org/ca/academic/subjects/law/contract-law/restitutiona
ry-rights-share-damages-carers-claims?format=PB

It approaches your question in the particular context of non-litigants who
have provided gratuitous care to the victim. Trust solutions feature
prominently.

Lionel


On 16-02-15, 11:21 , "Harrington Matthew P."
<matthew.p.harrington@umontreal.ca> wrote:

>Dear Colleauges:
>
>I¹m just finishing a chapter on damage awards and I want to solicit your
>input on an idea I have been mulling.
>
>I`m concerned about the use of the collateral source rule and the problem
>of over-compensation and windfall. I know that many will disagree with
>me, but I want to suggest that one way to ameliorate the problem is
>through the use of trust. While a several Canadian cases have used the
>theory (i.e. Arnold v. Teno and Thornton v. Prince George), McLachlin J.
>suggests in Ratych that the trust device is limited in the absence of
>some moral or legal obligation on the part of the plaintiff. I agree
>with on that. I¹m looking to see if I can find the moral obligation.
>
>So, in the absence of a specific statute creating a legal obligation,
>would it be feasible to rely on some theory of unjust enrichment to
>create the obligation? I want to suggest that in the absence of a
>specific subrogation agreement or some other tacit or implied agreement
>(as in Rawson v. Kasman), that unjust enrichment might supply the basis
>for a plaintiff to be required to hold proceeds that would amount to
>double recovery in trust.
>
>I suspect this might work in the case of substantial gifts or charitable
>contributions, but would it also fly where public benefits are concerned
>(in cases where the statutes do not provide that the Crown is
>subrogated)? In other words, would it be too far-fetched to suggest that
>a plaintiff is unjustly enriched to the extent that he receives both
>welfare payments and recovery from the defendant?
>
>I approach this from a Canadian perspective, of course, but I would be
>grateful if anyone could point me to Commonwealth or American authority
>on this idea? Feel free to self-promote and let me have citations to
>your own works.
>
>Also, I¹d be really grateful if those who know better could tell me if
>I¹m barking.
>
>Thanks.
>
>Matt Harrington
>
>
>
>
>---------------------------------------
>Matthew P. Harrington
>Professeur titulaire
>
>Faculté de droit
>Université de Montréal
>3101 chemin de la Tour
>Montréal, Québec H3T 1J7
>514.343.6105
>www.droit.umontreal.ca
>---------------------------------------
>
>