Dear Colleauges:

I’m 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. I’m 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, I’d be really grateful if those who know better could tell me if I’m barking.

Thanks.

Matt Harrington




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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
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