From: Andrew Tettenborn <>
To: Lionel Smith, Prof. <>
Harrington Matthew P. <>
Date: 19/02/2015 21:03:00 UTC
Subject: Re: Imposing a trust on damage awards - unjust enrichment

One case where statute has intervened to give this result in the English context: see Carriage of Goods by Sea Act 1992, s.2(4).


On 16/02/2015 17:16, Lionel Smith, Prof. wrote:
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


Andrew Tettenborn
Professor of Commercial Law, Swansea University

Institute of International Shipping and Trade Law
School of Law, University of Swansea
Richard Price Building
Singleton Park
Phone 01792-602724 / (int) +44-1792-602724
Fax 01792-295855 / (int) +44-1792-295855

Andrew Tettenborn
Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe

Sefydliad y Gyfraith Llongau a Masnach Ryngwladol
Ysgol y Gyfraith, Prifysgol Abertawe
Adeilad Richard Price
Parc Singleton
Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724
Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855


Lawyer (n): One versed in circumvention of the law (Ambrose Bierce)