piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Stroke Caused By Beauty Facial Case Settles

Claims against negligent beauticians and the like are not altogether uncommon. The injuries tend to be dermatological in nature consequent of some allergic reaction to an untested product. But who would have thought it possible, let alone likely, for someone to suffer a stroke as a result of a beauty facial treatment? Tragically that is what happened to Elizabeth Hughes after her visit to the spa at the Eastwell Manor Hotel. What should have been a weekend treat resulted in a serious stroke that left her disabled for life. Her claim, which otherwise would have been tried in the High Court this week, settled for an undisclosed amount. How did it happen? The medical experts on both sides were agreed that the stroke occurred as a result of a dissection to the carotid artery. The dissection was in all probability caused when beauty cream was massaged onto the sides of her neck by the beauty therapist. The issue was whether she was negligent or had applied an excessive degree of force. Unlike sports injury or deep tissue massages, where there are reported cases of stroke, this was a novel situation. This type of injury had not been encountered previously by beauty therapists. Mrs Hughes who was employed by the NHS as a nurse was left significantly disabled. Her disabilities prevented her from returning to employment in the nursing sector. The case has been watched closely by the beauty industry and the press. (http://www.mirror.co.uk/news/uk-news/nurse-disabled-stroke-after-allegedly-6798935) Elizabeth Hughes was represented by Edward Bishop QC and Kiril Waite at 1 Chancery Lane, instructed by Ciaran McCabe at Moore Blatch Legal Resolve.

A Head for Heights

  “… I was out in the garden with my stepladder today. Not my real ladder. I don't get on with my real ladder …” I was reminded of this old one liner when reading the latest instalment of the government’s Red Tape Challenge This is the revised guidance issued by the Health and Safety Executive (HSE) on working at height. This is now much simpler and sets out in clear terms what the law requires and the nature of an individual's responsibilities. It should be part of every personal injury lawyer’s tool kit. The new guidance is available free online: http://www.hse.gov.uk/pubns/indg401.pdf More than 1 million British businesses and 10 million workers are estimated to carry out jobs involving some form of working at height every year. The Work at Height Regulations (WAHR) 2005 (SI 2005/735) set out the law as it applies in Great Britain. These regulations have not changed. However key changes to HSE guidance include: Simple advice about the dos and don'ts of working at height. The dispelling of some of the persistent myths about health and safety law (Example – “I am working at height if I’m walking up and down a staircase at work. No, you are not. Work at height does not include walking up and down a permanent staircase in a building”). Targeted advice to help businesses in different sectors manage serious risks sensibly and proportionately. Helping workers to be clearer about their own responsibilities for working safely. The new guidance was produced with the support of various bodies including the British Retail Consortium, and the trade unions. It is also timely. Falls remain one of the biggest causes of serious workplace injury with more than 40 people killed and 4,000 others suffering major injuries every year. For lawyers, the guidance sets out clearly and informatively what employers need to do to protect their employees when they are working at height whilst at the same time making clear what can reasonably expected of employees to take responsibilities for their own safely. The emphasis is less on formal qualifications and more on competence. This means having the necessary skills, knowledge and experience for the work being carried out. Hardly new advice but a valuable reminder nonetheless!  

“Safe sex” – Part 3

Sex activity is “in every sense a personal choice”.   Ordinarily this truism might not find its way into legal submissions and certainly not submissions by the Solicitor-General of the Commonwealth of Australia. However, ordinarily injuries at work do not arise from a “vigorous” sex session in a motel bedroom.   Regular readers will recall the story so far in relation to this unfortunate “on the job” injury which raises important questions for personal injury and employment lawyers in the UK about the types of activities which can properly be said to arise out of or in the course of employment.    The respondent, a female public servant sued the Australian federal government after being injured while having sex on a work trip in a motel bedroom. The respondent’s partner’s evidence was that they were “going hard” when a glass light fitting came away from the wall above the bed striking her in the face and causing both physical and psychological injuries.   The appellant claimed compensation because her injuries were caused “during the course of her employment” as she had been instructed to travel to and spend the night in a motel in a small town in New South Wales ahead of a departmental meeting early the next day.   The respondent, Comcare, the Australian government's workplace safety body, rejected the claim on the grounds that sexual activity “was not an ordinary incident of an overnight stay like showering, sleeping or eating”. That decision was upheld by the Administrative Appeals Tribunal.   Nicholas J. allowed the appellant’s appeal - see PVYW v Comcare (No 2) [2012] FCA 395. Comcare appealed to the full court of the Federal Court of Australia (FCA) which dismissed its appeal – see Comcare v PVYW [2012] FCAFC 181.   In particular, the FCA rejected Comcare’s submission that an injured employee must show both that the injury occurred at a place where he or she was induced or encouraged by the employer to be and that the activity from which the injury arose was induced or encouraged by the employer or was implicitly accepted. It held that the potential conditions for liability were not conjunctive in the sense that an activity test should be super-imposed on a place test. There was no combined or two-stage test. There was a single test which may be satisfied in either one of two ways.   Comcare appealed to the High Court of Australia which on 30 October 2013 by a majority of 4-2 allowed the appeal and rejected the respondent’s claim for compensation – see Comcare v PVYW [2013] HCA 41.   The judgment of the majority was given by Chief Justice French AC. The essential enquiry in each case was “how was the injury brought about?” Sometimes the injury will have occurred at and by reference to the place where the employee was. Usually, however, it will have occurred while the employee was engaged in an activity.   The majority held at [38] that “when an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity?  When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment”.    It follows that where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at the place where the injury ocurred because such inducement or encouragement is not relevant to the circumstances of the injury.   Put another way, an employer is not liable for an injury which occurs when an employee undertakes a particular activity if the employer has not in any way encouraged the employee to undertake that activity but has merely required the employee to be present at the place where the activity is undertaken.   Two justices dissented. Bell J. held at [106] that “consideration of the connection between the circumstances of the injury and the employment relation would be to add complexity at the cost of certainty and consistency”. Gageler J. agreed holding at [159] that “The particular activity in which the respondent was engaged at the time she was injured does not enter into the analysis”.     The High Court’s decision means that in Australia an employer will not become, in reality, an insurer for an employee in respect of any activity carried out at a place which the employee has been induced or encouraged by the employer to be. It also provides useful guidance to UK lawyers who may be called upon to deal with unusual work place related injuries.   The decision also restores certainty and structure to the law of employers' liability in Australia – something which was sadly lacking in the motel light fitting in question!  

Punching inanimate objects and common sense

In 2010 Lewis Pierce was nine and a half years old and one day was playing at school with his younger brother George; both boys went over to a water fountain and George sprayed Lewis with water. George, seemingly not seeing the funny side then attempted to punch his brother, who being a sensible lad moved out of the way. Lewis missed George and ended up hitting the water fountain, cutting his right thumb. Consequently proceedings were started with the local authority as the Defendant, it being alleged that the water fountain had a sharp underside which amounted to a real and foreseeable risk. The judge at first instance agreed with this holding that there was a real risk that children might skylark around and could easily trip and cut their heads against the underside of the fountain (you’ll note that this wasn’t what happened to Lewis!). As such, Lewis was awarded £3,215.16. The Defendant appealed and the Court of Appeal (MR, McFarlane LJ and Sharp LJ) has today handed down their decision (West Sussex CC v Master Lewis Pierce (A child by his litigation friend Mrs Annette Pierce) [2013] EWCA Civ 1230. The Court allowed the appeal with Lady Justice Sharp noting that the trial judge had failed to identify and then answer the correct legal question. The judge failed to mention the Occupiers’ Liability Act 1957 and proceeded on the flawed basis that “once he had determined that the underside of the water fountain was sharp and there was a possibility that an accident might occur, the defendants were liable for what happened unless they had conducted what the judge described as a properly considered risk assessment.” Sharp LJ helpfully set out the correct question in such cases: “The question which has to be addressed … is whether as a matter of objective fact, visitors to the School were reasonably safe in using the premises, including for this purpose, the water fountain, bearing in mind of course that children do not behave like adults, and are inclined to lark around.” The answer to the question in this case was “yes”, the water fountain was reasonably safe (or more accurately that the evidence did not establish that it was not safe). The Court did not consider the underside of the fountain to be sharp (having had the opportunity to look at it) but even if it were sharp is was said that “by no stretch of the imagination could it be said to constitute a danger to children. Certainly the edge could be have been bevelled, or padded, and had that been done the claimant might not have injured his thumb. But to say that misses the point it seems to me. The School was not under a duty to safeguard children against harm under all circumstances … as a matter of generality, the School was no more obliged as an occupier to take such steps in respect of the water fountain than it would be in respect of any of the other numerous edges … against which children might accidentally injure themselves …”. In conclusion Sharp LJ said “The law would part company with common sense if that were the case, and I do not consider that it does so”.

Secondary victims and psychiatric injury: what is the relevant event when considering proximity?

The Court of Appeal has recently given judgment in relation to recoverability for psychiatric injury by a “secondary victim”.  In Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194, the claimant brought a claim arising from the death of her mother, who had been injured at work when a colleague had caused a stack of racking boards to fall on her.  The claimant’s mother appeared to be making a good recovery, but three weeks after the accident she suddenly collapsed and died as a result of the accident injuries.  The claimant witnessed her mother’s death, but did not witness the initial accident.    The judge at first instance allowed the claimant to recover damages as a secondary victim. The defendant appealed on the basis of lack of proximity, due to the fact that the claimant was not present at the time of the accident or involved in its immediate aftermath.  Lord Dyson MR reviewed the line of authority concerning recovery by secondary victims beginning with Alcock v Chief Constable of South Yorkshire Police [1991] 1 AC 301, and noted that this claim did not raise the more common questions which often arise in secondary victim cases.  Rather, the issue raised by was whether or not the death of the claimant’s mother was the relevant incident for the purposes of the claimant’s claim as a secondary victim.  Lord Dyson MR held that, in secondary victim cases, the term “proximity” is used in two senses.  Considerations of proximity arise firstly in the legal sense, ie. whether or not the relationship between the parties satisfies Lord Atkin’s neighbour principle in order for a duty of care to be owed.  Secondly, the law then considers whether the requirement of proximity in time and space is satisfied, with Lord Dyson MR stating that “physical proximity to the event is a necessary, but not sufficient, condition of legal proximity”.   It was held that the death of the claimant’s mother was not the relevant incident in terms of legal proximity, and that allowing the claimant to recover would be “to go too far”.   If the first instance judge was correct, the claimant (subject to proving causation) would have been able to recover damages even if her mother’s death had occurred months or possibly years later. However, had she died at the time of the accident and the claimant suffered shock coming onto the scene shortly afterwards, the claimant would not have been able to recover damages because she would have failed to satisfy the physical proximity requirement.  Lord Dyson MR therefore held that the idea that the claimant “could recover in the first situation but not in the others would strike the ordinary reasonable person as unreasonable and indeed incomprehensible”.  For that reason, it was not reasonable to impose liability on the defendant, as to do so would also potentially enlarge the scope of liability to secondary victims to a much greater degree than had been done before:  “A paradigm example of the kind of case in which a claimant can recover damages as a secondary victim is one involving an accident which (i) more or less immediately causes injury or death to a primary victim and (ii) is witnessed by the claimant. In such a case, the relevant event is the accident. It is not a later consequence of the accident” This case should therefore serve as useful guidance in secondary victim claims involving such novel considerations.   It will also be interesting to see how this case may be used by defendants in clinical negligence claims, in order to argue that an alleged “secondary victim” cannot recover damages where they witness the death of an individual some time after negligent treatment, but where they did not witness the “injury” or treatment itself.

“Safe sex” – Part 2

Regular readers will recall the story so far in relation to this unfortunate “on the job” injury which raises important questions about activities which can properly be said to arise out of or occur in the course of employment.    The appellant, a female public servant, sued the Australian federal government after being injured while having sex on a work trip in a motel bedroom. A glass light fitting came away from the wall above the bed as she was having sex striking her in the face and causing injuries to her nose, mouth and a tooth as well as “a consequent psychiatric injury” described as an adjustment disorder.   The appellant’s partner’s evidence was that they were “going hard” and that he did not know “if we bumped the light or it just fell off”.  He added, not unreasonably, that he was “not paying attention because we were rolling around”.   The appellant claimed compensation because her injuries were caused “during the course of her employment” as she had been instructed to travel to and spend the night in the motel in a small town in New South Wales ahead of a departmental meeting early the next day.   The respondent, Comcare, the Australian government's workplace safety body, rejected the claim on the grounds that sexual activity “was not an ordinary incident of an overnight stay like showering, sleeping or eating”. That decision was upheld by the Administrative Appeals Tribunal.   However, on appeal to the Federal Court of Australia (FCA), the appellant’s counsel submitted that the accident was in truth “no different than slipping over in the shower”. In addition, “lawful sexual activity” should now be considered reasonable behaviour in a hotel room by an employee as “it's not the 1920s”.   Counsel for ComCare responded that people need to eat, sleep and attend to their personal hygiene but “you don't need to have sex”.   The judge, Nicholas J., allowed the appellant’s appeal - see PVYW v Comcare (No 2) [2012] FCA 395. The judge held that “While it is true that in determining whether an injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the applicant’s employment, there was nothing of that description in the present case which could justify a finding that the interval or interlude was interrupted by the applicant’s lawful sexual activity” – see [54] of the judgment.   Comcare appealed to the full court of the FCA which on 13 December 2012 dismissed its appeal – see Comcare v PVYW [2012] FCAFC 181.   In a carefully reasoned judgment the full court, presided over by Keane CJ., rejected Comcare’s essential submission that “an injured employee who claims to have been injured during an interval or interlude between periods of actual work must show both that the injury occurred at a place he or she was induced or encouraged by the employer to be and that the activity from which the injury arose was induced or encouraged by the employer, or was implicitly accepted”.   The court held that that the potential conditions for liability were not conjunctive in the sense that an activity test should be super-imposed on a place test. There was no combined or two-stage test. There was a single test which may be satisfied in either one of two ways. Further, the concept of, here, “a frolic of her own” was one which applies to wrongful acts. The court also made clear that “the views of the respondent’s employer about the respondent’s (lawful) activities were irrelevant, whether or not those views (if sought) may have reflected disapproval or indifference” – see [50] – [55] of the judgment.   This must be right. Why should being injured whilst having sex be any different to the claimant being injured whilst working out on one of the exercise bicycles or cross trainers in the motel’s gym provided that the injury occurred within an overall period or episode of work and negligence can be shown. Further, why should the employer approve when and how an employee has sex any more than where she chooses to have her breakfast?   Comcare is considering an appeal to the High Court, Australia's highest legal tribunal. In the meantime, common sense has prevailed, the judgment provides useful guidance on the scope of workplace injuries and I, for one, will in future double check the structural integrity of motel light fittings.  

Welly Wanging 2

Some of you may remember an earlier post of mine relating to a preliminary application in the case of Blair-Ford v CRS Adventures Ltd (http://www.piblawg.co.uk/post/2012/06/27/Warning-Low-Flying-Wellies-!.aspx) The claim was brought by Mr Blair-Ford after he suffered catastrophic injuries whilst welly wanging at a mini-Olympics event run by the Defendant company. Unfortunately for the Claimant Mr Justice Globe dismissed his claim. Of note in the judgment are the judge’s observations about the importance of risk assessments. No such assessment had been undertaken in relation to the welly wanging event, although a general assessment had been conducted of the mini-Olympics as a whole. Globe J noted the observations of Smith LJ in Uren v Corporate Leiasure (UK) Ltd [2011] EWCA Civ 66, summarising them in the following words: “Risk assessments are meant to be an exercise by which the employer examines and evaluates all the risks entailed in his operations and takes steps to remove or minimise those risks. Sometime, the failure to undertake a proper risk assessment can affect or even determine the outcome of a claim and judges must be alive to that and not sweep it aside. Risk assessments remain an important feature of the health and safety landscape and can provide an opportunity for intelligent and well-informed appraisal of risk and can form a blueprint for action leading to improved safety standards. That said, she [Smith LJ] has stressed that they are not a panacea and are probably more effective in relation to static conditions or activities which are often repeated in a fairly routine way. They may be a less effective tool where a lot of variables come into play.” With the above comments in mind, Globe J found that in the present case there were a “lot of variables” and as such the absence of a formal risk assessment could not be criticised. It was found that the carrying out of a “dynamic risk assessment” was acceptable, i.e. D’s instructors were trained to carry out on-site risk assessments as part of an on-going and “dynamic” process. Conditions frequently changed and the relevant instructors had to use their initiative to assess risk as and when matters arose. All sensible stuff it seems to me and Defendants will do well to remember that the lack of a written risk assessment need not be fatal to the defence of any claim. What is important is to be able to demonstrate that one is conscious of potential risk: that does not necessarily require the slavish completion of forms in all circumstances. In any event, Mr Blair-Ford’s injury was unforeseeable. The learned judge’s view was that in this case the risk that needed to be foreseen was the risk of serious injury and not just the risk of any injury. In the circumstances there was no foreseeable risk, the possibility of serious injury being at most “a mere possibility which would never influence the mind of a reasonable man”.

Claim dismissed - but do appeal!

The unfortunate Ms Drysdale was injured on the first day of her tenancy when she was ascending the steps to the property she had rented. She fell on the middle of three steps which had been painted red by the landlady to improve their appearance. There was a low wall (9.5 cm) next to the steps and a 2.5 metre (8 feet) drop on the other side of the wall. Ms Drysdale fell over the wall and was seriously injured. The judge in Drysdale v Joanne Hedges (27th July 2012, Unreported) found that the drop was dangerous and a reasonable landlord ought to have raised the wall or provided a guardrail. He also found that the paint increased the slipperiness of the steps. Nonetheless he dismissed the claim commenting that he had considerable sympathy for Ms Drysdale but that her remedy could only be in another court. The judgment provides an interesting analysis of what duties are owed by a landlord to a tenant for personal injury and in what circumstances. The case was brought under the Occupiers’ Liability Act 1957 (‘OLA’), the Defective Premises Act 1972 (‘DPA’) and at common law. The judge considered that the OLA did not apply: at the time of the accident the tenancy and occupation had commenced. He held that parliament could not have intended s. 4 of the ‘DPA’ and s. 2 of the OLA both to define a landlord’s duty. In fact s. 4 of the DPA replaced s.4 OLA. The judge turned to s. 4 of the DPA. He noted that in order to show a breach of the tenancy agreement and s. 4 Ms Drysdale had to show the premises were ‘not in good repair’. The judge cited Alker v Collingwood[2007] 1 W.L.R. 2230 in which a claimant had argued that a glass panel in a door in rented premises was dangerous because it did not contain safety glass. Carnworth L.J. said that a duty to repair could not be equated with a duty to make safe. You could let out a house with a very steep stairway with no railings but s. 4 does not require you to make safe such a dangerous feature. The judge also referred to Quick v Taff Ely Borough Council [1986] QB 809 in which Lawton LJ said ‘a tenant must take the house as he finds it; neither a landlord nor a tenant is bound to provide the other with a better house than there was to start with’. Applying all of this the judge found that although the drop from the middle step to the basement was dangerous, it was not out of repair; the drop from the steps would not have been unusual at the time the house was built. He also concluded that the steps were not actually out of repair. Accordingly there was no breach of section 4. The judge then turned to the common law. He observed that Cavalier v Pope [1906] AC 428 decided that a landlord who lets premises in a dangerous condition owes no duty to remedy the defect and no duty of care to a third party injured as a result of the defect. That decision had been criticised and attempts had been made to limit its effect. The claimant in Lips v Older [2005] PIQR P14 suffered a similar accident to Ms Drysdale. He was successful but Cavalier v Pope was not mentioned. It was also not mentioned in Sowerby v Charlton [2006] 1 WLR 568 by the Court of Appeal. That case also involved similar facts but the case was about admission of liability and whether a judgment should be set aside and not whether such a common law duty was owed. The judge concluded that Sowerby did not bind him. In the end the judge took the view that he was bound by Cavalier so far as the unguarded drop was concerned and that the landlady had no duty to guard it. However he did consider that she owed a duty to take reasonable care to ensure that the application of the paint did not create an unnecessary risk of injury. Without such a duty a landlord would have carte blanche to act with impunity and create dangers which would not be caught by the 1972 Act. Even though he found there was a duty in relation to the steps and that the presence of the paint unnecessarily increased the risk, he did not find a breach. A knowledgeable person might have known that the B & Q paint would have increased the risk but not the ordinary man on the street. Accordingly it could not be said that the landlady had failed to take reasonable care. So, no duty under the Occupiers’ Liability Act where section 4 of the DPA applies. No breach of duty under section 4 of the DPA where there is no disrepair. No duty is owed at common law by a landlord who lets premises in a dangerous condition (Cavalier is still good law) but a landlord owes a duty to take reasonable care not to create an unnecessary risk of injury. It is not clear whether the Claimant will appeal – watch this space!

Beware the NHS ‘killing season’

If you had the misfortune to be inside a hospital today, you may not have been imagining it if you thought the doctors are getting younger…   According to the Telegraph, around 7,000 graduate doctors today began practice in hospitals up and down the country.     Dr Anthea Martin, senior medical advisor at the Medical and Dental Defence Union of Scotland, says “many [junior doctors] are being thrown in at the deep end and the nature of medicine means that it is inevitable doctors have to learn on the job.”   The changeover has been labelled as 'black Wednesday' or the 'killing season' because of the rise in death rates. In 2009 a study by Imperial College London (involving 300,000 patients at 170 hospitals) found that patients admitted as an emergency on ‘black Wednesday’ are 6% more likely to die than on the previous Wednesday.   This raises questions over the standard of care expected of more junior doctors.   The general rule, as set out by the Court of Appeal in Jones v Manchester Corp [1952] 2 Q.B. 852, is that the patient is entitled to the same level of care and skill as would be expected of a fully qualified and well experienced doctor. “Errors due to inexperience or lack of supervision are no defence as against the injured person”.     What is often overlooked is that subsequently in Wilsher v Essex AHA [1987] Q.B. 730, a majority of judges accepted (albeit obiter) the standard of care owed by a doctor may depend on his subjective knowledge of the risks associated with the treatment. According to Sir Nicholas Browne-Wilkinson V.C “one of the chief hazards of inexperience is that one does not always know the risks which exist”. A doctor “should only be held liable for acts or omissions which a careful doctor with his qualifications and experience would not have done or omitted” Mustill L.J. was more blunt: “The structure of hospital medicine envisages that the lower ranks will be occupied by those of whom it would be wrong to expect too much”.   It remains to be seen whether, and if so how, these cases can be reconciled. ‘Black Wednesday’ may indirectly, provide the answer.

Vicarious liability - a whole new world

in JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938 the Court of Appeal explored the "new world" of vicarious liability outside of the strict confines of an employer/employee relationship.    The seeds of this extension to vicarious liability were sown in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005]. But once the "touchstone" of employment is no longer a requirement, how will the court decide whether there is vicarious liability?    The Court of Appeal were at pains to emphasise that a "close connection" between tortfeasor and the defendant was not either necessary or sufficient. There are plenty of very close connections that do not lead to vicarious liability - such as parent/child, or spouses.    Rather, the test is the extent to which the relationship is close enough as to be akin to one of employment. This requires looking at the hallmarks of the employer-employee relationship. The Court of Appeal considered that the "control test" set out in Ready Mix Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 had become an unrealistic guide as times had changed and the emphasis on control had been relaxed. The Court of Appeal examined the authorities and attempted to distil them into a single sentence:   "an employee is one who is paid a wage or salary to work under some, if only slight, control of his employer in his employer’s business for his employer’s business. The independent contractor works in and for his own business at his risk of profit or loss."   The Court of Appeal analysed the relationship between a priest and the bishop as follows. Although they depend very much on the particular facts of this case, the way the court examined them is very useful:-   a) The bishop had some control over the priest: he could supervise and effect improvements in performance, and eliminate risks of harm to others.  b) The priest was integrated into the church organisation and structure.  c) The priest's remuneration was more like a wage than being in business on his own account.    The result was that the role of priest was akin to being an employee and that the Defendant was vicariously liable for his conduct.    The significance of this decision comes from the fact that the labour market is in the process of structural change. More and more people have new, flexible forms and patterns of work which are very different to the traditional dichotomy of employment or self-employment. Health and safety regulations take account of this in many cases. And now the law of vicarious liability seems to have caught up.