Simone Degeling

Designing reparation: lessons from private law

1 Professor, UNSW Law. 2 Professor, TC Beirne School of Law, University of Queensland. 3 Australian Government, Defence Abuse Response Taskforce: Amended Terms of Reference (November 2015), www.defenceabusetaskforce.gov.au/Aboutus/Documents/Amended-Terms-of-Reference.pdf (‘DART Terms of Reference’). DART comprises reparations payments, restorative engagement and an extensive counselling program. 4 Set out in Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015) (‘2015 Report’). 5 See generally S Degeling and K Barker, ‘Private Law and Grave Historical Injustice: The Role of the Common Law’ (2015) 41 Monash University Law Review 377–413. Designing Reparation: Lessons from Private Law

Tort and Unjust Enrichment Intersect Again

ISLINGTON LBC v University College London Hospital NHS Trust1 brings the intersections between tort and unjust enrichment into sharp relief once again. At issue were the past care costs of a tort victim who had been injured through the negligence of UCH. Necessary care was provided gratuitously by the victim’s local authority, the London Borough Council of Islington. As will be explained, this meant that the cost of care could not be recovered by the victim from the tortfeasor. Had the care been provided by friends and family, then a claim could have been sustained by the victim under the principles in Hunt v Severs.2 The difficulty in this case was that the gratuitous care was instead provided by Islington pursuant to its statutory obligations. It seems to have been assumed that because of this the facts could not fall within the scope of Hunt v Severs and therefore that the value of such care could not be recovered by the victim. The case also highlights the need for the carer or other third party provider to be able to force litigation against the wrongdoer. The victim’s action never reached court and a structured settlement agreement was entered by the parties. Apparently because it was thought that Hunt v Severs could not apply, no provision for the value of care provided by Islington was included in that agreement. However, even if the victim had been entitled to include in her damages claim an amount on account of the gratuitous care provided by Islington, as the law currently stands Islington would have had no means of compelling the victim to take this step. Islington therefore brought its own proceedings against UCH in tort to recover the costs of care. The claim failed. At the risk of distorting liability in tort, arguments were made, ultimately unsuccessfully, that the loss was Islington’s and that a direct tort claim should be available. This article is not concerned with whether or not Islington should have had a direct claim in tort. Rather, the point is made here that the facts disclose unjust enrichment and that Islington could have been entitled to a remedy for this reason.3 Despite Buxton LJ noting that unjust enrichment is a “very difficult area”,4 the purpose of this brief discussion is therefore to expose the unjust enrichment configurations contained in the case. It will be argued that the facts disclosed two potential unjust enrichment claims for Islington. The first was a derivative claim, so that the facts might have been brought within Hunt v Severs. The second was a direct claim by Islington against UCH in unjust enrichment. In its review of the recoupment rights of third parties who provide benefits to tort victims, the Law Commission recommended against implementing a statutory right to claim against the tortfeasor, A N A L Y S I S 117