From: Lionel Smith, Prof. <>
To: Harrington Matthew P. <>
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

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


On 16-02-15, 11:21 , "Harrington Matthew P."
<> 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.
>Matt Harrington
>Matthew P. Harrington
>Professeur titulaire
>Faculté de droit
>Université de Montréal
>3101 chemin de la Tour
>Montréal, Québec H3T 1J7