Matthew,

So the problem you have in mind is

C claims for damages from D, but has already recovered some of the losses from a charitable source or a gift from a well-wisher (A); should A have to hold some of the damages on trust for A? There is a similarity isn't there with cases like Hunt v Severs where the claimant is attempting to recover for nursing care provided by her partner - who as it happened had caused the accident rendering her so severely injured in the first place so A and D are on the face of it the same person. It's a rather different context, but I analogised from Hunt v Severs to say that in competition law claims where Cartelist overcharges Direct Purchaser who passes that overcharge on to Indirect Purchaser that IP ought to be able to piggy back onto DP's claim against C - "Passing on, Indirect Purchasers and Loss Allocation between Claimants" [2012] LMCLQ 261. I did conclude it couldn't be an unjust enrichment claim though, and so disagreed with Simone whose book Lionel has just pointed you to.

In any case if I understand your scenario aright, I think there's an important difference. IP in my competition law example really doesn't have much choice in the matter. If he wants the goods, he pays the price. If a steel cartel fixes steel prices so the price of my car rises. I either pay the increased price, or I can't have a car (assuming all car manufacturers pass on the overcharge). The well-wisher doesn't have to do anything; he chooses to pay and presumably does so in the knowledge that the claimant might recover. I'm also dubious that the Crown should recover - unless it has explicitly provided in legislation that it will.

Duncan

>-----Original Message-----
>From: Harrington Matthew P. [mailto:matthew.p.harrington@umontreal.ca]
>Sent: Monday, February 16, 2015 4:21 PM
>To: obligations@uwo.ca
>Subject: Imposing a trust on damage awards - unjust enrichment
>
>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
>
>
>
>
>---------------------------------------
>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
>---------------------------------------
>