Consent to risk and movie stunts: a recent ruling from South Africa

During filming for Resident Evil: The Final Chapter in South Africa, UK-based stuntwoman Olivia Jackson was involved in a serious collision with a camera boom while riding a motorcycle. Ms Jackson suffered a number of serious injuries, including facial scarring, nerve damage and an above-elbow arm amputation. The liability insurance policy for the film did not include cover for injury to the cast or key crew. In this blog, Sam Cuthbert of 12 King’s Bench Walk considers Ms Jackson’s claim before the High Court of South Africa. The full judgment, which includes an interesting analysis of the defence of volenti non fit injuria, can be found here.

Facts

The incident occurred on a disused stretch of dual carriageway. A Mercedes Benz ML 555 AMG was fitted with a mobile boom known as the ‘Freedom Arm’, which was extended at a right angle to the vehicle and to which a camera was attached. The Mercedes was carrying the driver and the arm operator. The boom and the camera were operated from inside the vehicle by the arm operator. The intention had been to film Ms Jackson as she approached the Mercedes, which would be driving in the same direction, and then to capture her riding underneath the boom as she passed at 70km/h. The boom was to be raised up once the Mercedes had reached the designated safe marker point, allowing the motorcycle to pass safely.

Both a dry run and a rehearsal run took place without incident. Prior to the third run, the film’s director gave instruction to the Mercedes driver to decrease the safety margin so as to achieve a more exciting shot. However during the third run, the boom was not lifted in time and the camera collided with the Plaintiff’s face and shoulder causing her multiple serious injuries.

The Plaintiff brought proceedings against the South African film company, the stunt coordinator, her employer, the driver of the vehicle and the camera boom operator. She brought separate proceedings against the Road Accident Fund (“RAF”) which is a state insurer providing compulsory cover to all users of South African roads. The RAF became the sole defendant following a ‘special plea’ – a procedural defence in South African law which either destroys the cause of action or postpones the operation thereof – successfully made by the other defendants on the basis that the incident fell within the purview of the RAF. Despite the accident occurring on a closed and disused section of road, it was nonetheless held to be a road traffic accident for the purposes of the Road Accident Fund Act 56 of 1996. The RAF denied that that the insured driver had been negligent, and argued that Ms Jackson had consented to the risk of damage.

Liability

The issues of liability and quantum were separated in this case, and a quantum trial is due to follow. As regards liability, the parties’ accident reconstruction experts agreed in the joint minutes that:

  1. the operation of the boom had not been performed with any degree of operational accuracy but left to the subjective judgment of the arm operator and the insured driver;
  2. during the unsuccessful run, the boom was lifted at least three seconds later than it had been in the previous successful runs;
  3. the Mercedes driver’s account that he called “boom up” when the motorcycle was at the marker was inconsistent with the video evidence;
  4. the first two runs were not remotely similar as regards timings;
  5. the collision would have been avoided had the driver of the insured vehicle aborted the run when he saw the motorcycle was already at the marker identified for the boom to be lifted.

The arm operator and Mercedes driver suggested the Plaintiff had ridden too fast and faster than previous runs, that she had not kept a proper look-out and that she could have avoided the collision. However, the experts agreed that it would have been impossible for Ms Jackson to avoid the collision.

In concluding that there was no opportunity for the Plaintiff to take evasive action, the Judge accepted the evidence of the experts and of the Plaintiff herself who stated she has done nothing different on the third run. The Mercedes driver was found liable for failing to account for his own positional differences between the runs. The Judge found that he had started the third run considerably further back and this led to his reaching the marker later, by which time his command of “boom up” to the arm operator was delayed and the Plaintiff collided with the camera. The Judge found that no calculations had been made as to what a safe distance would be for raising the boom, and that the Mercedes driver had further miscalculated the margin for error. The Judge found no contributory negligence, and made an order that the RAF was liable in full for the Plaintiff’s damages flowing from the accident.

Consenting to the risk of damage 

The RAF sought to rely on the defence of volenti non fit injuria. The Judge found that this defence is only applicable where the alleged wrong falls squarely within the risk assumed, and that the South African courts had applied the defence of volenti cautiously. The Judge found that this case was comparable to the case of Kepko v RAF 2008 JDR 1475 (D) in which the Plaintiff was found to have consented to the normal risks of the dangerous sport of motorcycle racing but not to an insured party behaving like an “idiot”.

The Plaintiff was similarly found to have accepted the risks which may arise in the normal course of her work where every person was correctly carrying out their role. However, she did not consent to an insured driver failing to adequately carry out his role by (i) not driving from the appropriate starting position, (ii) not making any proper calculations, (iii) not adhering to his job; and (d) decreasing the safety margin without informing the Plaintiff.

The Judge set out that volenti deals with the Plaintiff’s subjective state of mind, expressly manifested through her actions. Successfully pleading volenti would therefore require the RAF to prove on a balance of probabilities that the Plaintiff had full knowledge of the risk to which she was consenting. Given the safety margin was reduced without the Plaintiff being informed, she could not have consented to the incumbent risks. It was therefore impossible for the RAF to prove this defence

Comment

This judgment is a vivid reminder of exactly what is and what is not encompassed by the defence of volenti. The harsh effect of the defence being that it can deprive an injured party of her whole claim means that it has been interpreted narrowly. In order for it to apply, the injured party must have had full knowledge of both the nature and extent of the risk. As the Kepko case explains, consenting to take part in an inherently risky activity is not the same as consenting to run the risk of someone else’s negligence (or their “idiocy”). The same has long been held to apply in England (the classic case remains White v Blackmore [1972] 2 QB 651).

The decision is therefore a useful piece of comparative learning and one which directly applies and develops the principles likely to be employed by the courts of England and Wales in similar cases.

In practical terms, it is of interest that, had the film production company taken out appropriate insurance cover, the preliminary hearing may have been decided differently such that the RAF may not have been the sole defendant. Whilst Ms Jackson stands to receive damages from the RAF, the scheme’s inbuilt caps and thresholds to claimant compensation are such that her losses are unlikely to be adequately covered.

Moreover, there is much media speculation as regards the solvency of the RAF. Its 2018-19 Annual Report shows significant financial difficulties, for example at p. 12: “it is evident that the RAF has not been solvent for many years. The accumulated deficit has increased by R55,779,880,000 in the 2018/19 financial year.” This increased the total deficit to R260.7bn. This creates uncertainty as to both the promptness of successful Plaintiffs receiving their compensation, and as to whether the scheme will remain viable long enough for Ms Jackson to receive her compensation. We await further news and the outcome of the quantum trial with interest.

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