In the case of Hickey v McGowan and Cosgrove*, 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.