In the case of Hickey v McGowan and
Cosgrove,1 the plaintiff had his award of damages
reduced by 10% from €350,000 to €315,000 where he failed
to sue all concurrent wrongdoers. This case is significant as
it reduced the level of damages payable to the plaintiff on the
basis that another party (who was not sued) was vicariously liable
for the wrongs committed by another.
The plaintiff was awarded €350,000 damages in the High Court
for sexual abuse suffered at the hands of the second named
defendant, a Marist Brother, whilst a pupil at St John's
College in Sligo. The first named defendant, Patrick Joseph
McGowan, the Provincial of the Marist Congregation of Ireland, was
found vicariously liable for the acts of the Marist Brother.
Judge O'Neill awarded the plaintiff €250,000 in general
damages to date and €100,000 for general damages into the
future.
However, Judge O'Neill reduced the plaintiff's award of
damages by 10% to €315,000 as he also found the manager of the
school, Canon Collins, vicariously liable for the wrongs
committed. While Canon Collins exercised little actual
control over the Marist Brother, the fact that he had control over
his contractual arrangements justified this imposition of vicarious
liability. The plaintiff could not now or at the time of
trial, sue the manager of the school as any such action would be
statute barred.
Section 35(1)(i) of the Civil Liability Act 1961 provides that a
plaintiff shall be responsible for damage caused by a concurrent
wrongdoer against whom a claim is statute barred. Therefore,
the plaintiff absorbed the manager's liability under this
section, and had his award of damages reduced by 10%. It is
notable that there was no criticism of the defendants for not
joining the manager as a third party to the
proceedings.
This case illustrates how an award of damages can be reduced where
a plaintiff fails to sue all correct concurrent wrongdoers in an
action. It also shows the importance of the plaintiff naming all
the correct defendants to an action.
Footnote
1 [2014] IEHC 19
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