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Bluebook 21st ed.
Desmond Ryan, Close Connection and Akin to Employment: Perspectives on 50 Years of
Radical Developments in Vicarious Liability, 56 Irish Jurist (N.S.) 239 .

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Ryan, D. ., Close Connection and Akin to Employment: Perspectives on 50 Years of
Radical Developments in Vicarious Liability, 56 Irish Jurist (N.S.) (N.S.) 239 .

APA 7th ed.
Ryan, D. Close Connection and Akin to Employment: Perspectives on 50 Years of Radical
Developments in Vicarious Liability. Irish Jurist, 56, 239-260.

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Desmond Ryan, "Close Connection and Akin to Employment: Perspectives on 50 Years of
Radical Developments in Vicarious Liability," Irish Jurist 56 : 239-260

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Desmond Ryan, "Close Connection and Akin to Employment: Perspectives on 50 Years of
Radical Developments in Vicarious Liability" 56 Irish Jurist (NS) 239.


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Desmond Ryan, 'Close Connection and Akin to Employment: Perspectives on 50 Years of
Radical Developments in Vicarious Liability' 56 Irish Jurist 239.

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Ryan, Desmond. "Close Connection and Akin to Employment: Perspectives on 50 Years of
Radical Developments in Vicarious Liability." Irish Jurist, 56, , p. 239-260.
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Desmond Ryan, 'Close Connection and Akin to Employment: Perspectives on 50 Years of
Radical Developments in Vicarious Liability' 56 Irish Jurist (NS) 239

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, "CLOSE CONNECTION" AND "AKIN
TO EMPLOYMENT": PERSPECTIVES ON
50 YEARS OF RADICAL DEVELOPMENTS
IN VICARIOUS LIABILITY

DESMOND RYAN


INTRODUCTION

It is now 50 years since the publication of the new series of the Irish Juristin
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".2 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 ofvicarious 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.


Background: The need to place vicarious liability developments in perspective
Given that this special edition of the Irish Jurist seeks to provide perspective
on developments in the period 1966-2016, it is salutary to recall at the outset
the Supreme Court decision in 1975 in Moynihan v Moynihan.' As my analysis

1. Sir John Salmond, Salmondon Torts, 1st edn (London: Sweet & Maxwell, 1907), pp.8 3
-




84.
2. Patrick Atiyah, Vicarious Liability in the Law of Torts (London: Butterworths, 1967),
p.172.
3. [1975] I.R. 192.


239

, 240 DesmondRyan

in Section 2 below will illustrate, Moynihan was in many ways ahead of its
time in its willingness to apply orthodox vicarious liability principles in a non-
employment relationship. Moynihan concerned a two-year-old plaintiff who
sustained serious personal injuries when she upturned a teapot on herself in her
grandmother's home. The trial judge withdrew the case from the jury on the
ground that the defendant, the child's grandmother, could not be vicariously
liable for the negligence of her daughter (the plaintiff's aunt) in leaving the child
unattended. The plaintiff successfully appealed this point to the Supreme Court,
which by a majority directed a new trial. Walsh J., delivering the judgment
of the majority, identified the concept of control as the key guiding criterion
in determining whether vicarious liability could be imposed.4 Henchy J.'s
reference in his dissenting judgment to "the redress of one wrong by the creation
of another"' was cited by the late Hardiman J. as a basis for declining to impose
vicarious liability in O'Keeffe v Hickey.6 Placing Moynihan in perspective some
40 years on, two points are now immediately striking: first, the emphasis placed
on "control" is now increasingly difficult to sustain in light of later case law
analysed in Section 1 below; secondly, Moynihan provided a clear example of
judicial recognition of the possibility that vicarious liability could apply in non-
employment relationships. It has only been in very recent years that the courts
in this jurisdiction and in the United Kingdom have considered at length the
implications of applying vicarious liability in non-employment contexts.
The majority approach in Moynihan has, over the years, been the subject
of criticism-most trenchantly in the judgment of Hardiman J. in the leading
modem vicarious liability decision of the Irish Supreme Court in 2008 in
O'Keeffe. Long before O'Keeffe, however, McMahon and Binchy, writing
in their third edition of Law of Torts, had observed that, while the majority
judgment laid down "defensible rules for determining vicarious liability", the
application of these rules to the facts was "hardly convincing".' More recently,
the former Chief Justice, the Honourable Mr Justice Ronan Keane, had
described the decision of the majority in Moynihan as "somewhat perplexing"'
and involving a "radical extension of vicarious liability".' As the late Hardiman
J. observed in O'Keeffe, it seems an "inescapable"o conclusion that the case
turned upon the existence of an insurance policy, presumably the grandmother's
household insurance." Moynihan thus provides an early example in Ireland of
a controversial policy stance being adopted by the majority of the Supreme
Court in the 1970s. By 2008, in O'Keeffe, Hardiman J. went much further in

4. [1975] I.R. 192 at 197.
5. [1975] I.R. 192 at 202-203 per Henchy J.
6. [2008] IESC 72; [2009] 2 I.R. 302.
7. Bryan M.E. McMahon and William Binchy, Law ofTorts, 3rd edn (Dublin: Butterworths,
2000), p. 1093 fn.10.
8. Ronan Keane, "Judges as Lawmakers: The Irish Experience" (2004) 4(2) JudicialStudies
Institute Journal 1 at 4 fn. 10.
9. Ronan Keane, "Judges as Lawmakers: The Irish Experience" (2004) 4(2) JudicialStudies
Institute Journal 1 at 4 fh. 10.
10. [2008] IESC 72; [2009] 2 I.R. 302, para.45.
11. The issue of insurance was considered in both the majority (see especially p.198) and
(rather more forcefully) the dissenting (see pp.202-203) judgments in Moynihan.