Accident "disclaimer"

[Stuart Basson]

I've never seen this before in all my thirty years.

 

A local amateur "youth musical" outfit is doing a show that invloves "people flying." The kit is designed for purpose and is installed by a commercially respected, specialist firm. It is operated by professional crew.

 

Now, then - the local company have produced a "disclaimer" for the 16-year-old performer to sign that, in the eyes of the company, render them free from any liability in the event of anything going wrong. It is on company-letterheaded paper and has a bit of the old "party of the third part" stuff in it, but my thought is that it would get laughed out of a court of law.

 

Morally, I think it stinks. We're dealing with kids, here, and they should be protected. The way to ensure that the company is not liable is to make sure that everything is done properly.

 

Legally, any thoughts? I'll post the full text of the disclaimer when I get to work in an hour or so.

 

Stu

[paulears]

Well - he can't sign it anyway - his parents/guardian would have to do that, and although I'm no legal expert, I don't think that you can actually sign away responsibility like this. On top of this, under 16s get special protection anyway - the usual duty of care stuff - but best of all, there's presumably a Childrens License in force, from the local authority. I'd bet that this too would rub against the idea of signing away protection.

 

The trouble will be, of course, that the little startlet, having got through the audition will badger their parents into signing it anyway.

 

Peter Pan isn't a new show, after all. Amateur Companies are usually NODA members, and have proper insurance - I wonder what is behind this? If they've had a proper legal document drawn up, I wonder why they spent the money, and on who's advice?

[Jivemaster]

If the talent is actually 16 then they may be able to sign on their own behalf, as 16 & 17 year olds are legally Young poeple, not legal children.

 

To get anyone to sign a disclaimer part way through the preparation stinks

 

The very existance of a disclaimer means that the "Company" (Ltd or not) don't understand the HSWA that you cannot disclaim liability.

 

The company is digging itself a very deep hole, failure to understand the HSWA and the duties of care imposed in a work situation (paid or not) could cost the directors/ managers/ leaders dearly. In a "children" situation then public opinion could bray for tham to hang if their were to be in incident and enquiry.

[Stuart Basson]

Here's the text:

"I understand and accept that my use of the flying harness and equipment during [production] at [venue] is undertaken entirely at my own risk and whilst professional equipment is being used and every precaution possible for safety will be taken, [amateur theatre group] can accept no liability whatsoever."

 

Only the names have been changed to protect the innocent, (ie me!! :blink: )

 

When I got wind of its existence I did throw a bit of a wobbly and suggest that no flying would take place if I thought that they were trying to indemnify themselves against prosecution in the event of the kid hurting herself. Accordingly, when they showed me the document, the part from the company's name onwards had been inked out!

[Brian]

Two thoughts...

 

1) Criminal Law - ie the HSWA amongst others - it is not possible to sign away your protection under criminal law. For example, the Police can still prosecute you for assault even if the person you assault doesn't make a complaint or withdraws it. Like wise you couldn't get someone to sign something which says 'It's OK to kill me; I don't mind.'

 

2) Civil Law - Civil Law is where the money is. Any lawyer would be able to tear apart such an agreement without breaking sweat. On the whole, all disclaimers, whether signed or not, are not worth the paper they are printed on.

[Ynot]

If the talent is actually 16 then they may be able to sign on their own behalf, as 16 & 17 year olds are legally Young poeple, not legal children.

Actually, no - the definition of a child in the eyes of the CPS is "Up to the age of 16 and still in full time education".

For example, my own eldest was 16 in September last year so doesn't leave school til this month, so she still requires a licence for any qualifying performance until next month.

(Doesn't help the OP, but...)

[pisquee]

As the organising company are amateur, I doubt they have any reserves of cash to make suing them in the event of an accident worthwhile. However, the "professional crew" and "commercially respected, specialist firm" involved in the operation, design and install of the flying equipment, may be more liable, and have more money and insurance to be sued against. If I was parent to a kid who was injured in an accident happening due to this going wrong, the people I would be chasing would be these, and not the amdram organiser.

[Ynot]

As the organising company are amateur, I doubt they have any reserves of cash to make suing them in the event of an accident worthwhile. However, the "professional crew" and "commercially respected, specialist firm" involved in the operation, design and install of the flying equipment, may be more liable, and have more money and insurance to be sued against. If I was parent to a kid who was injured in an accident happening due to this going wrong, the people I would be chasing would be these, and not the amdram organiser.

That is precisely why a properly accredited professional company should be used in these cases. I'd wager that said company will have more than enough valid insurance to cover any failings on their part. That said, even am dram companies should have adequate insurance to cover their own members.

 

HOWEVER one caveat I would add is that I suspect that insurance cover would be dubious in the event that the child involved were to misuse the flying rig themselves - eg try to perform a 'trick' on the wires that said pro company have not trained them for, or even told them NOT to attempt. Similarly if one of the am-dram crew were to make an error in the operation of the rig, then the liability for claim would likely fall back onto the am dram insurers, NOT the pro riggers.

[andy_s]

I misread this, and thought it was the flying company issuing the disclaimer due to the so called "underage" status of the performer, and my view on this is that if they felt this to be necessary, then a reputable company should be declining to undertake the work in the first place. However, this might have the unfortunate effect of opening the field to the cowboys....

 

But I see that it is actually the amateur producer that is writing the note. This I think is even worse. I assume the director has directed the flying, or that it is called for in the script, or that there is some other way of justifying its inclusion in the production. If this is the case, then the producers need to accept responsibility for the safe operation of this activity, regardless of their status as amateurs.

 

As Tony has said, the flying MUST be performed as directed and as per training given. the flying choreography must be properly documented and perhaps rehearsed before each performance as you would for stage combat.

 

(by the way - "amateur" doesn't necessarily equate to "poor" - I've know some pretty wealthy amdram societies)

[Stuart Basson]

For clarity, the firm supplying the kit are among the first three or four names we'd all come up with if asked. Their chap installed it and hung around (hell yeah, pun intended! :blink: ) to instruct my crew (pro theatre regulars, who operate the kit at my insistence) and relevant company members in its proper use. They've been great.

 

The Disclaimer Folk are the amateur producers themselves. You know, the people that this kid has learned to trust and look up to in her time in the company. That's why it stinks that these people want to be able to walk away if she ends up injured.

[sleah]

To add 2p. I'm not expert and have no experience in connection with flying, however my thoughts are this.

I agree that the disclaimer is worthless, as we have a moral duty, let alone legal duty to protect young people - or any one under our 'care' for that matter!

Ideally the dram company should have insurance that specifically covers them for flying. If I were a parent and my child wished to be involved, if I found out they didn't have suitable insurance then I'd be taking my child as far away as possible, that's before finding out if they were even competent.... which would be the next question after finding out about insurance.

 

From the dram company side, forget legalities for a moment. Imagine you did a show and a child was killed or injured for life. Could anyone honestly sit there and continue running the company smug in the knowledge that you shed all responsibilty by a piece of paper? Sadly, yes some people would. It's a horrible thought to me.... Even a totally unavoidable accident that was fully insured where no-one is prosecuted would leave a very nasty taste.

 

Someone needs a public flogging for that disclaimer :blink:

[Smiffy]

I may have the wrong end of the stick here (wouldn't be the first time :blink: ), but are the AmDram company claiming that they have no insurance for the kids against accidents involving the Flying of them?

 

I would have thought that if the company doing the flying are a Pro outfit, then their insurance is going to cover just about everything, and that they would also have advised the company renting their services (the AmDram group) of what insurances they would need to be getting themselves for such a venture.

 

Would it perhaps be sensible at this stage to find out what insurance the AmDram group should have here, and then point out that the disclaimer is a pile of ######, & tell them to tear it up, and then ask for the appropriate insurance paperwork.

 

Cheers

 

Smiffy

[Andrew C]

The Company may not have any cash to warrant suing them, but in many cases the "Committee" will be "jointly and severally liable" for this sort of issue.

[Ynot]

I would have thought that if the company doing the flying are a Pro outfit, then their insurance is going to cover just about everything, and that they would also have advised the company renting their services (the AmDram group) of what insurances they would need to be getting themselves for such a venture.

I'm not 100% on this, but logic would suggest that the pro flying company WILL have perfectly adequate insurance to cover the correct use and operation of their kit. My earlier point was such that if an incident (note - NOT 'accident') occurred due to the am-dram company or child flying specifically, then the pro insurance may legitimately fight back and put the liability on to the amateurs - and thus the insurers they use would have to pick up the ball.

 

However, it could then also be argued by the am dram underwriters that if the incident was proven to have occurred as a result of the child being flown 'mucking about' or showing off, then their liability then ends... Self Inflicted Damage is what they used to call it in my youner days... (Watch out for SID was the slogan).

[Glyn Edwards]

Watch out for SID was the slogan.

 

As opposed to telling him?