This book is about particular three-party cases occurring at the boundary between tort and unjust enrichment. The conceptual problem to be addressed is to explain why a stranger to litigation should ever be entitled to participate in the fruits of that litigation. The paradigm example of such cases is the victim of a tortious injury and her carer. An incapacitated victim of tort may receive help from her friends and family who intervene in order to ameliorate the effects of the tortfeasor's negligence. They may give assistance in the form of services provided to the victim or payment of her debts. The victim is entitled to sue the wrongdoer in respect of the value of this assistance. However, in general the carer has no right to sue the wrongdoer, and it is widely assumed that she cannot compel the victim to do so on her behalf. In some cases, the victim will recover damages subject to the carer's entitlement to share in the fund. In these cases, the carer is a stranger to the victim's suit, but is nonetheless entitled to participate in the victim's judgment. The carer's entitlement to share in the fund has never been explained. In addition, the fact that in some cases the carer's right is proprietary adds to the confusion.

The same pattern is evident in the rights available to an indemnity insurer. The insurer indemnifies the insured for loss. The proper claimant in any suit against the wrongdoer is the insured.

There are cases in which the victim has promised to pay the carer. In some instances this promise is contained in a contract for care entered into between the victim and carer. In others, there is a promise which the courts have not treated as being enforceable as a matter of contract. In both categories there are examples in which the carer is entitled to share in the victim's damages. Such cases raise the question: is there any correlation between those cases in which the victim has promised to pay the carer, and those in which the carer is entitled to share in the fruits of the victim's claim?

This chapter determines whether the promise of remuneration is relevant to the carer's right to share. The evidence is that it is not. It is necessary to distinguish between the mere existence of a promise to pay the carer and breach of that promise. As this chapter will show, the victim's promise is not, of itself, capable of supporting the imposition of a mechanism by which the carer shares in the fund. On the other hand, breach of that promise may well be. The structure of this discussion will be as follows: the first section maps out the cases in which there is a promise to pay and the second section identifies the conceptual relevance of this promise.

My doctoral research, which forms the basis of this book, was submitted to the University of Oxford in 1998, and was funded by the Commonwealth Scholarship Commission and St Peter's College Oxford. Some of the chapters are updated versions of those written for my thesis. Other chapters, particularly chapters 8 and 9, are the result of work done since.

My greatest debt of gratitude is to my thesis supervisor Peter Birks. As his student I had the benefit of his patience, wisdom and generosity. He is a great scholar and teacher and I am privileged to have been his student. I am also indebted to my thesis examiners, Gareth Jones and Lionel Smith, for their thoughtful and helpful comments on my work. In this respect, I am particularly grateful to Lionel Smith, who has continued to provide advice and inspiration. Mention must also be made of Ewan McKendrick, who has always been a source of support and encouragement.

In completing this project, I was also assisted by various people who were kind enough to give me their views, or engage in conversation about my work. Listed alphabetically they include: John Armour, Robert Chambers, Simon Gardner, Charles Mitchell, George Panagopoulos, Francis Rose and Robert Stevens. I am also grateful for the assistance given by the School of Law, University of Nottingham. I would not have been able to complete the manuscript without sabbatical leave, and the moral support given by colleagues, particularly at the end, was much appreciated.

This book explains why a stranger to litigation is entitled to share in the fruits of that litigation. The central example around which discussion revolves is the carer, who is entitled to share in the fund of damages won by the victim in her suit against the wrongdoer. The same pattern is evident in the indemnity insurance cases, in which the indemnity insurer is entitled to participate in the fund of damages won by the insured in diminution of loss.

In exploring this central issue three features of the cases have been revealed. The first is that the pattern of the cases seems to reveal the carer's entitlement as a contingent entitlement. There are no cases in which a mechanism implementing the carer's right to share is imposed in recognition of a prior obligation on the victim to pay the carer. Superficially at least, it appears that the carer's right therefore springs to life only when the victim has succeeded in her damages claim against the wrongdoer.

Secondly, the difficulty is aggravated by the assumption that the carer has no direct rights of claim. A contingent entitlement is already difficult to explain. A contingent entitlement vested in someone with no rights exercisable against either the person paying damages or the person holding the fund is doubly anomalous. In advancing an explanation of the carer's entitlements it has therefore been necessary separately to consider the possible claims available in contract, tort and unjust enrichment.

This chapter explains why the carer's access to the fund is proprietary in nature, being expressed through the mechanism of a trust. Although on the particular facts a trust was not actually imposed, the House of Lords in Hunt v. Severs held that in the case where carer and tortfeasor are not the same person, the victim will hold in trust for the carer that portion of the damages award calculated by reference to the value of the carer's intervention. As has been discussed, their Lordships failed to identify the juridical basis of the trust. It is important to separate the fact of the carer's entitlement to participate in the fund from the form of the right to do so. This book has shown that the right to participate is raised to reverse the enrichment which would otherwise remain, the unjust factor being the policy against accumulation. However, even with this analysis, it is still necessary to account for the fact that the carer's entitlement is proprietary.

This chapter contends that the policy against accumulation itself triggers the proprietary nature of the carer's entitlement. The particular feature of the cases justifying a proprietary, rather than a personal award, is that the carer's intervention directly enlarges the victim's patrimony. The model of damages liability adopted by the court makes the value of the victim's claim, in part, a function of the value of the services provided by the carer.

This chapter determines whether the cases support a claim for the carer against the victim in unjust enrichment. The victim and carer cases contain little judicial discussion of the carer's possible unjust enrichment claim against the victim. This chapter is therefore limited by the fact that it does not reflect any explicit judicial consideration of the carer's claim. Nonetheless, as the following analysis demonstrates, there is much to be said in support of the carer's unjust enrichment claim. This chapter therefore determines the extent to which such a claim is sustainable by the carer against the victim.

In order to demonstrate the victim's unjust enrichment at the expense of the carer, the following elements must be satisfied: first, the victim must be enriched by the receipt of a benefit; secondly, this benefit must be received by the victim at the expense of the carer; thirdly, the carer must show that it would be unjust for the victim to retain the benefit. This last requirement is merely a way of saying that there must be an unjust factor present in the factual matrix which affects the quality of the victim's enrichment. Finally, the victim must have no defence to the carer's claim. Each of these elements will be addressed below.

The victim is enriched

The victim receives services from the carer. These services may be nursing or domestic care. There are also rare examples in which the services of the carer have been crop harvesting or other farm work.

It is surprising that even a carer, who is entitled to share in the damages obtained by the victim, is assumed to have no claim of his own, against either wrongdoer or victim. This assumption is made both in those cases which recognise the carer's right to participate and those which do not. For example, the reasoning in Hunt v. Severs starts from the proposition that the carer has no claim against the wrongdoer in tort. The carer's possible claim against the victim in unjust enrichment was raised in counsel's submissions but was not discussed by the House. The same assumption is made in Kars v. Kars in which the High Court of Australia, in line with its own previous authority, confirmed that the carer has no right to share in the fund. It is implicit in Kars that only the victim is entitled to sue the wrongdoer. The carer's possible direct claim was not referred to by the High Court, even though the market value of the carer's assistance was relevant when calculating the victim's damages. Given the assumption in all jurisdictions that the carer has no claim against wrongdoer or victim, why then should the carer be permitted in some jurisdictions to participate in the damages recovered? It is prima facie impossible to explain how anyone with no claim at all of her own can be given an interest in damages won by the victim.

By recognising the carer's right to participate in the victim's damages, the House of Lords in Hunt v. Severs has revealed three anomalies. The first is the apparently inexplicable nature of the carer's contingent right to participate in the victim's damages. The second is that the logical consequence of that right is that, when the tortfeasor is also the carer, the fund available to provide for the victim is much reduced. The third is that the carer is left without any means of forcing suit against the wrongdoer. Rather, the law appears to adopt the bizarre configuration in which the carer's position is recognised, in that she is entitled to share in the victim's damages, but is not protected because the carer is unable to ensure that these damages actually are recovered.

The result in Hunt v. Severs occurred because the House of Lords held that the victim could not recover from the tortfeasor a sum which the tortfeasor, in her capacity as carer, would be entitled to have back. This book shows that the first and third anomalies are an illusion. The second anomaly, itself inescapable except by legislation, is more easily tolerated than is the logical consequence of the High Court of Australia's approach in Kars v. Kars. Consistent with its previous authority, the court denied that any carer has a right to share in the fund.

Courts fail coherently to explain why the carer, a stranger to the victim's suit against the wrongdoer, is entitled to share in the fruits of the victim's claim. The limited purpose of this chapter is briefly to document judicial opinion in Australia, England and common law Canada as revealed by the leading cases in each jurisdiction. This introduction to the leading cases provides a basis for the discussion which follows in the remaining chapters of this book.

The factual pattern under examination is the negligently injured victim suing the wrongdoer in order to obtain damages in tort. The victim may be cared for prior to trial by friends and family. In addition, there may be evidence that the intervention of friends and family will continue after the date of judgment to meet the victim's future care needs. The victim generally is entitled to recover an amount by way of damages which is referable to the assistance provided by the carer. However, there is no uniform approach to two important questions: (1) whether the carer is entitled to share in the proceeds of the litigation; and (2) whether or not this right is proprietary. In England and Canada, the carer is entitled to participate in the fruits of the victim's claim. In Australia, the carer is denied access to the fund of damages. Each of these jurisdictions will be considered in turn.

Introduction

Some time ago a study by Jack Dawson compared the German and American positions on the requirement of ‘directness’ in the law of unjust enrichment. It is not at all easy to come up with a satisfactory short statement of that requirement, but, broadly speaking, its effect is to restrict liability to the first or immediate enrichee and to forbid leapfrogging the proper defendant in order to sue remoter recipients who, on one argument or another, might also be said to have been enriched at the claimant's expense. Dawson's study concluded that German law had chosen to insist rather strictly on directness, while American law, although agreeing with German law in a number of important and recurrent situations, had never committed itself to the same dogma. Proceeding in a characteristically pragmatic manner, it had allowed a variety of claims which could not have satisfied any requirement that the enrichment must have come directly from the claimant.

This subject has preoccupied German jurists but has been very little visited by English lawyers. Niall Whitty's recent study of the Scots law, heavily influenced by German and other civilian writing, has served to draw English attention to the deficiency. More recently still, Sonja Meier, who has made a speciality of comparison between the German and English law of unjust enrichment, has written an important and helpful article in the Cambridge Law Journal, which once again reminds us of the need to take this subject much more seriously.

‘Performance’ of obligations by persons other than those who bear them, far from being exceptional, is an everyday occurrence under both the French and English systems of law. It is the purpose of this article to explain how this is the case in particular in relation to contractual (and private-law obligations and to explain how this relates to more general issues of performance (whether voluntary or enforced), damages (notably, the rules clustered around the notion of mitigation) and restitutionary recovery. As my title indicates (and, indeed, as the structure of the French law requires), I shall discuss the performance of obligations in general and not merely those to pay money. The juxtaposition of two provisions of the French Civil Code forms the starting point of the discussion: the first, article 1236, is the obvious one, as it deals with the situations in which the law permits the performance of another's obligation by a third party; the second, article 1144, is less obvious, as it provides for judicial authorisation of a creditor of a contractual obligation to have the debtor's obligation performed at the debtor's expense.

A note on terminology

In the following discussion, it seems helpful to set out the French terminology and explain its usefulness for analysis of the two situations. Here, it is necessary to distinguish carefully between obligation, prestation and paiement.

Setting the scene

The brief of this chapter

As Lord President Rodger has recently remarked, references to ‘taxonomy’ are ‘very much à la mode in discussions of enrichment law’. The reason is well known. The English legal system accidentally overlooked its law of unjust enrichment for several centuries and has just rediscovered it. English lawyers are now busy exploring and developing it. The resultant outburst of intellectual creativity displays the awesome strength of English legal culture. The English enrichment law revolution has had a moderately galvanising effect in Scotland.

Certainly before Robert Goff and Gareth Jones's Law of Restitution broke the English ice in 1966, there was in Scotland a complacent tendency to believe that Scots enrichment law with its Cantiere case was much more advanced than the English law with its ‘Coronation’ cases and the implied contract fiction in Sinclair v. Brougham.