(iii) Determining Whether the Enrichment Was Received at the Expense of the Claimant

Although it will often be easy to establish that the defendant had been enriched by the claimant’s necessitous intervention, it may be more difficult to establish that this enrichment had been received at the expense of the claimant. This can be illustrated by reference to the example of the claimant who intervenes to save the life of the defendant’s racehorse. Can the defendant be considered to be enriched at the claimant’s expense if the claimant was not a professional vet? Clearly such a claimant should be entitled to recover the expenditure which he or she had reasonably incurred, since this is expenditure which the defendant had saved and this benefit was received at the claimant’s expense, since the claimant had suffered a loss in providing the benefit. But should such a claimant be entitled to receive any remuneration for his or her services? The defendant will have been saved this amount by not needing to employ a professional vet, so it constitutes an enrichment. If the claimant was a professional vet the defendant’s benefit in remuneration saved corresponds with an identifiable loss suffered by the claimant,[1] namely the remuneration the claimant would have been able to charge had it been possible to bargain with the defendant. If, however, the claimant was not a professional vet, he or she would presumably not have entered into a contract to provide the service and so it will not be possible to conclude that he or she had suffered any loss of remuneration in providing the service to the defendant, so the defendant’s gain does not correspond with the claimant’s loss.

(iv) Limiting the Restitutionary Remedy

Where the claimant has intervened to preserve the defendant’s property, it would be unacceptable if the restitutionary award exceeded the value of the property, simply because the effect would be to cause the defendant to suffer a loss rather than simply to reverse the defendant’s enrichment. Consequently, the ‘value of the property preserved should be the ceiling of any restitutionary award’.[2]

  • [1] See p 116, above, for analysis of the correspondence principle.
  • [2] Jones, Restitution in Public and Private Law, 154.
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