by Mitchell Clark, MBA Lawyers partner and Personal Injuries specialist
Films often depict the illusion of injury or death, sometimes in very clever ways that cause us to think that the incident is real, which is part of the magic of filmmaking. Unfortunately, in the process of filmmaking, accidents can occur which cause actual injury or death to actors or film crew members.
The recent accidental shooting of cinematographer Halyna Hutchins by the famous American actor Alec Baldwin while on a film set, raises questions about the law and safety protocols on film sets.
An actor (or film crew member) injured in the making of a film will often encounter financial detriment as well as the personal suffering. Where the accident is not the fault of the actor, there is legal avenue for financial compensation.
A film set in law is considered to be a ‘workplace’ and is subject to workplace laws including the obligation on the film’s Producer to take reasonable steps to ensure the safety of the actors and film crew working on the set.
A legal claim for compensation relating to injury or death can take into account the following factors:
- Lost wages;
- Pain and suffering;
- Permanent disfigurement;
- Lost earning potential; and
- Emotional distress.
Film sets can be dangerous workplaces
The legal case for the actor Jon Blake is a benchmark in Australia in this niche legal field. Blake was totally incapacitated in a tragic car accident driving home after the last day of filming ‘The Lighthorsemen’ movie in countryside South Australia in 1986. He was touted as the next Mel Gibson, meaning with potential for his career to lead to stardom status, that was destroyed by the serious injuries. Evidence at the Trial referred to Gibson earning $16M per annum. Blake was originally awarded $33M by the Court, which on appeal was reduced to $7.6M as compensation. The money was paid by the insurance company of the person who caused the accident.
Also from the 1980s, American Director John Landis (famous for movies such as ‘The Blues Brothers’, and Michael Jackson’s ‘Thriller’ video), was one of several people charged with involuntary manslaughter following three deaths from helicopter crash on the set of the movie, ‘The Twilight Zone’. The Jury decided that Landis did not expect the scene to be dangerous and he was found not guilty. In the wake of this tragic accident, filming codes in the USA were significantly revised.
What about liability release forms?
Production companies routinely require crew – especially stunt crew – to sign liability release forms. The basic gist is that the worker agrees to give up their right to pursue legal action for injuries regardless of fault. Are such forms valid?
The effectiveness of waiver of liability agreements depends on:
- The language of the waiver: is it unambiguous? What about a Japanese national asked to sign a waiver written in English?
- Gross negligence: The waiver cannot extend to cover recklessness or intentional infliction or harm. Plus, the waiver is ineffectual for injury arising outside of the scope of employment.
- Defective equipment excluded: If injury is caused by production-related equipment malfunction, then the waiver is irrelevant.
No film is worth anyone’s life or health. Ask to see the Producer’s insurance policy. Accidents happen even under the best-controlled environments (and the purpose of the legal obligation for the Producer to have taken-out workers compensation insurance). Refuse to sign the waiver.
If you have been injured at work – no matter what kind of workplace it is – we are here to help. Contact our Personal Injuries team today.