It is now 50 years since the publication of the new series of the Irish Jurist in 1966. The following year, Patrick Atiyah was famously to describe the Salmond ‘course of employment test’ for establishing vicarious liability as being ‘an apparently simple test whose simplicity is largely deceptive’. Almost 50 years on, the prescience of that statement, even when applied more broadly to vicarious liability principles generally, is now abundantly clear. The purpose of this article is to place in perspective the radical developments in vicarious liability which have taken place in this jurisdiction and in the United Kingdom in the last 50 years in two key respects: the modification of this so-called ‘course of employment’ test to a ‘close connection’ test, which considers the connection between the wrongdoing and what the defendant engaged the wrongdoer to do; and the test for ascertaining whether the relationship between the defendant and the wrongdoer is one that is capable of attracting vicarious liability. It is fitting that, in conducting this assessment of how this area of the law has developed, culminating in an analysis of the case law as it stands in 2016, there have been very significant developments in the last year that vividly reveal the extent and depth of those developments.
Although the key case law introducing radical overhauls of vicarious liability principles has tended to be concerned primarily with institutional sexual abuse cases, this article seeks to assess the implications of the authorities from the perspective of the employment relationship and similar working relationships, and to consider the implications of these shifts in the law for employment and akin-to-employment relationships. Each of these questions is the subject of analysis in two different Sections of this article.
Desmond Ryan, “Close Connection” And “Akin To Employment”: Perspectives On 50 Years Of Radical Developments In Vicarious Liability, Irish Jurist 2016, 56(56), 239-260.