Liability

[slim_mcslim]

I am keen to solicit people’s views on Liability... And try to establish where exactly the buck does stop.

 

Imagine the following scenario:-

 

Production company employs a freelance lighting tech, (a suitably insured, taxpaying reputable one), aforementioned lampie during the normal course of the event accidently drops and breaks a full colour custom gobo (technically belonging to the client, not the production company) the production company suggest that the lampie should knock the cost of gobo off his invoice lampie does so begrudgingly....

 

Who is right?

 

Or imagine that in the same scenario, substitute £90 gobo for £4000 LCD projector, let’s say the "fictitious" technician were to climb a ladder to hang this projector from a truss and accidently dropped it causing irreparable damage. Now where does the liability lie??

AV Rental Company doesn't believe in accidents and therefore requires a replacement projector from the production company who rented it; does the production company have the right to demand that the freelance/sub contracted "employee" replace the projector?

 

(assume that the projector isn't very heavy, and the lampie was perfectly happy, trained and competent to hang the projector and wasn't working outside of their remit or normal procedures)

Just interested to hear what people think....

 

(Note to Mods. As far as I know these are both imaginary scenarios’ just something we discussed in the office the other week)

[loaded]

I would say this is one very clumsy/unlucky lampie, and should maybe be avoided at all cost.Otherwise whoever employs said lampie may well end up out of pocket! Alot....

[scjb]

My personal opinion is that these are exactly the sort of occurences that you take out your insurance to provide against.

 

I should have thought that the AV company would end up making a claim against it's own insurance policy for replacement of the kit, and the insurance company would then be looking at getting their money back from the person who was at fault (ie the Lampie). The Lampie would then end up making a claim against his/her personal insurance to cover the claim...

[Ben]

Have to say I agree with scjb, if it was the companies liability then there would be no need for us all to be insured

[timjbarker]

Or is the production company at liability for not providing suitable access for rigging aforementioned projector? Is a ladder suitable for rigging from for a projector? Pretty hard to justify under WAH?

[Ben]

Or is the production company at liability for not providing suitable access for rigging aforementioned projector? Is a ladder suitable for rigging from for a projector? Pretty hard to justify under WAH?

 

"(assume that the projector isn't very heavy, and the lampie was perfectly happy, trained and competent to hang the projector and wasn't working outside of their remit or normal procedures)"

 

If this is the case then the "lampie" being competent and trained if he feels it unsuitable access then he has a duty of care under H&S legislation to not do it and to report the problem to his crew chief. I have been in situations where I have refused to rig parts of an even because I felt it unsafe and it causes problems but if there is an accident and I was the one that rigged it and would be held responsible if the chief decides to rig it then I ensure my concerns are known and if I feel this very unsafe will look to take it to someone higher in the company. this has happened and I was called in to a meeting the next day, I explained the situation and was praised for looking out for both myself and the company.

[Pete McCrea]

If you, as the production company, dry hired it from us, or any other AV company I know, under the t+c's you accepted by signing for the kit on the delivery note, you would be responsible for the full replacement cost and any loss of earnings. So we'd expect you to replace it.

[Ben]

Yes but then the production company may claim it from the individual. You have a contract that the company is responsible to you, however the company will almost certainly claim they have an agreement with the individual that they are responsible for what they do and in the cases above that would include damaging the items.

 

If you rent a flat and sub rent a room you are responsible to the landlord but the person renting the room is responsible to you for the state of that room its much the same sort of ladder of responsibility.

 

Just like if the clamp you supply for the rigging of the projector is faulty or is insufficient the company would almost certainly claim that its your responsibility as the equipment supplied was faulty. A lot of this depends on the exact reason for the damage occurring. Think of it this way, if it fell and hit somone killing them who do you think the police would charge? Wouldn't be the company it would be the person that failed to ensure it was safe.

[zonino]

I would say this is one very clumsy/unlucky lampie, and should maybe be avoided at all cost.Otherwise whoever employs said lampie may well end up out of pocket! Alot....

 

the scenario states that it is a sub contractor, therefore employment is not on the cards here.

 

(the distinction needs to be made, particularly if anything you are writing down can be shown to HMRC to indicate an employee relationship which may or may not be to your disadvantage)

[dbuckley]

I would expect (as Pete noted above) the hirer of the projector to require the hirer to cough for the cost and reasonable lost earnings, and I would expect the hirer to be "the production". I would further expect "the production" to have insurance for eall elements of the production.

 

An employee of the production would not be expected to pay for the busted kit; thats just a cost of doing business. But, a sub-contractor, or freelancer, or whatever, it comes down to the what is in the contractual arrangements. If the agreement is for labour then I would not expect by default the labourer's company to be held responsible, but it really ought to be spelled out in the contract.

[Guest lightnix]

As is being hinted at, there's more to the situation than may initially meet the eye and IRL a number of questions would be asked by the insurers, before deciding where the liability lay.

 

To start with: why would the production company even consider asking a crew member to rig from a ladder??? A highly questionable practice these days, to say the least.

 

Even if a ladder was the only "reasonably practical" solution for rigging that bit of kit in that particular place, could / should there not have been a ground man to rope the kit up and bear the weight / provide a safety line, leaving the man up the ladder to "just" position it?

 

Yes - freelancers / subcontractors are "free" to say "No" to doing anything they consider to be dangerous; in fact it's basically illegal for them to do so, once they have expressed such a concern. But any freelancer with half an ounce of experience, will be all too familiar with the consequences of taking that course of action; starting with accusations of inflexibility, unhelpfulness and the lack of a "can do attitude", etc. and ending with not working for the company again (as if you'd want to, after all that abuse).

 

Under the freelance / sub-contractor system, it's been all too easy to lay the blame for the consequences of poor planning on the crew. It's a sad fact, that for all the training, competence and general business-like attitude that are demanded of crew members these days; it's the incompetence of the management that frequently gives rise to situations for which the crew are ultimately blamed.

 

If the crew were employees of the management, then the latter would have to take far more responsibility for their actions and the methods chosen for them to carry out the work. Maybe the fact that the freelance / sub-contractor model "allows" them to abdicate much of that responsibility, is one of the main reasons why it remains so popular :)

[The Boogie Man]

The underlying problem here is the same as the one in the previous thread, the one that the subtitle of this thread says it follows on from.

Self employed or cards in.

Once thats cast in stone the responsibility becomes clear cut.

 

To use another example from my previous (sounds dodgy :) )

If I was putting in a kitchen for a client, and I bought/rented(go with me here) a kitchen to put in. I am totally responsible for that kitchen until the client pays me for it and I leave.

I then have someone fit the kitchen in for me whilst I scratch and drink tea. They then break the kitchen.

If they were cards in then I would groan and go buy another kitchen. If the person was sub contract then they would be off to get another one or I would and they would be getting less at jobs end.

 

baz

[Guest lightnix]

You're absolutely right Boogie Man. Unfortunately "cards in" (an expression which I suspect few in here have heard before - no disrespect) has simply never, ever been an option in the "backstage" business.

 

It's one of, if not THE main reason that I got out of freelancing: I was utterly sick - to the point of total career burnout - of having to present myself as a so-called "independent subcontractor" (with all the responsibilities it entails) if I wanted to get any work and yet be treated just like an employee i.e. told the hours I would be working, how the job would be done and what I would be paid for doing it - just so that my clients could avoid paying NICs and abdicate any rsponsibility for my actions, in the event that it all went t*ts up :)

 

Oh well - that's showbiz :( :( :(

[Stan Hope-Streeter]

<br />

But any freelancer with half an ounce of experience, will be all too familiar with the consequences of taking that course of action; starting with accusations of inflexibility, unhelpfulness and the lack of a "can do attitude", etc. and ending with not working for the company again (as if you'd want to, after all that abuse).<br /><br />

 

Ah yes, the well-known scenario...

 

" Are you saying you're not capable of doing the job?

'Cos if so, I'll have to find somebody who is.... "

 

And there's sure to be somebody else on the crew who has the Right Attitude,

 

i.e. "The Show Must Go On, The Client Is King, We Will Open On Time" . Regardless...

 

who can step in and get it done without making a fuss.

[Guest lightnix]

" Are you saying you're not capable of doing the job?

'Cos if so, I'll have to find somebody who is.... "

Not forgetting those other, timeless classics...

 

"There's plenty more where you came from, mate."

"Your kind are ten-a-penny."

"Do you know how many CVs we get sent each week?"

 

etc., ad nauseum :)