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(B) PRESERVATION OF LIFE, HEALTH, AND PROPERTY

There are a number of cases where restitutionary relief has been awarded by reason of necessity where the effect of the claimant’s intervention is to preserve the defendant’s life, health, or property, even though the claimant has not discharged any liability of the defendant.

(i) Preservation of Life or Health

Although there is little authority on the point, in principle a claimant who has intervened to save the defendant’s life or the life of somebody for whom the defendant is legally responsible, such as the defendant’s child, or to preserve the health of such a person, should be entitled to restitution. But, restitution will only be awarded in such circumstances if the claimant has intervened in circumstances of necessity[1] and to the extent that the defendant has been enriched at the expense of the claimant. This will depend on whether the claimant has incurred reasonable expenditure or has rendered professional services for which he or she is entitled to reasonable remuneration. In a Canadian case,[2] a surgeon who intended to charge for his services was held entitled to recover remuneration for his professional services in his reasonable, but unsuccessful, attempt to revive a person who committed suicide. Whether this should properly be analysed as falling within the law of restitution would turn on whether the deceased’s estate can be considered to be enriched by the service if it was unsuccessful and whether the claim might be defeated by subjective devaluation.

  • [1] Shallcross v Wright (1850) 12 Beav 558, 50 ER 1174.
  • [2] Matheson v Smiley [1932] 2 DLR 787. Affirmed in Skibinski v Community Living British Columbia [2010]BCSC 1500, (2010) BCLR (5th) 271, albeit in a public service context.
 
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