Film and TV industry: entertainment must not be pursued at the expense of safety

Amid increasing demands for ever-more daring stunts and realistic depictions, coupled with tightening budgets and timescales, there is a risk this may be forgotten. However, the pursuit of entertainment cannot be at the expense of safety. Those who fall below the standards required will face enforcement action, which may include prosecution, reputational damage, a hefty fine and, for individuals found to be at fault, the potential for immediate imprisonment.

Photograph: iStock/webclipmaker

Fatal shooting on ‘Rust’ film set

The recent imprisonment of the armourer from the set of the US movie Rust following the fatal shooting of a cinematographer brings into sharp focus the potential human cost of failure. In that case, live bullets had been mistakenly placed in a gun used during a stunt. The armourer was charged and convicted of involuntary manslaughter.

Media reports of the court proceedings record that the jury found the armourer’s “sloppy” and “unprofessional” conduct had caused the live rounds to be interspersed with the dummy bullets, leading to the fatal shooting. As a result, the armourer was given an immediate 18-month custodial sentence, said to be the maximum sentence for such cases.  Further proceedings against other accused individuals are scheduled for later this year.

Interestingly, as is the case in the USA, the production company has agreed a financial settlement out of court with the New Mexico Environment Department’s Occupational Health and Safety Bureau (OHSB). Reportedly, the OHSB had issued a $136,796 (£114,457) fine, the maximum allowable by state law, last April. It was later reduced to $100,000 (£83,705) under the settlement, according to Sky News.

There is an interesting difference in approach to the UK, where the focus of enforcement authorities is often the corporate body and attention only turns to the individual if the situation warrants it. An individual within an organisation can be held to account under the Health and Safety at Work etc Act 1974 when the breach can be shown to have been the personal fault of that individual. Separately, any officer of an organisation is personally in breach where the organisation committed an offence with the ‘consent or connivance of, or it is shown to have been attributable to any neglect on the part’ of that officer.

Decision to prosecute

Any decision to prosecute must meet both the evidential sufficiency and public interest criteria set out in the Code for Crown Prosecutors. The Health and Safety Executive’s (HSE) Operational Guidance on prosecuting individuals states that: “If a body corporate commits an offence then there is likely also to be some personal failures by directors, managers or employees. This does not mean we always prosecute individuals… in general, prosecution of an individual will be warranted in cases where there have been personal act(s) or failing(s) by an individual, and it would be proportionate to prosecute, bearing in mind the nature and extent of the breach and the risk to health and safety arising from it.”

In practice, the vast majority of prosecutions are against organisations rather than individuals. This is reflected in recent prosecutions in the entertainment industry which have been against organisations rather than individuals.

In one recent prosecution of an organisation, entertainment company ELP Broadcast and Events Ltd was fined £16,000 plus costs when it admitted health and safety failings which led to the death of a worker. Mr Bowry sustained fatal injuries when he fell from the roof of a structure while working as part of an assembly team for a project that required the building of a temporary rehearsal stage.

In this case, HSE’s investigation found that ELP Broadcast & Events Ltd had failed to plan and implement a safe system of work, as required by the Work at Height Regulations 2005, which are applicable both to employers and those who control work at height (for example, production companies). The company had also failed to implement its own health and safety policy and ensure there was adequate supervision.

In a second recent case, production company FF9 Pictures Limited was fined £800,000 after a stunt performer was injured during the filming of Fast and Furious 9: The Fast Saga. Mr Watts sustained life-changing injuries when he fell 25 feet onto the concrete floor below when the line on his stunt vest became detached while filming a fight scene.

Laura White is a senior associate at law firm Pinsent Masons. Photograph: Pinsent Masons

HSE’s investigation found a litany of failings by FF9 Pictures Limited, including in the risk assessment, which had not addressed the potential for a rope snap or a link failure. There was no system for double checking that the link securing the line to his stunt vest had been properly engaged and tightened. There was also no system for checking the link for signs of deformation or stretching between takes and, in fact, the manufacturer’s website stated that the link used was not for use as personal protective equipment and shock loading should be avoided.

On top of that, Mr Watt’s harness had not been inspected as required. Nor had FF9 Pictures Limited extended the crash matting needed to mitigate the consequences of an unintended fall following changes to the set and the sequence of the stunt.

Reasonably practicable steps

Elimination of risk is not required, only that all reasonably practicable steps are taken to ensure the health, safety and welfare of workers and others who could be affected by the work activities. Falls, fights and the depiction of injury are integral to many film and television productions and where stunt work is involved, the purpose is not to prevent a fall, punch etc., but to minimise the risk of an injury from it. 

Whether all reasonably practicable steps have been taken will be a question of fact in each case, but can be a high bar to surmount, as the Royal Opera House (ROH) discovered in 2019 when the Court of Appeal upheld an earlier decision that it had failed to take reasonable steps to prevent injury to a professional viola player during a rehearsal of a Wagner piece. During the rehearsal Mr Goldscheider was exposed to noise levels which caused him to suffer “acoustic shock” in his right ear despite wearing earplugs with 25dB attenuation provided by ROH.

ROH had provided all musicians with hearing protection, but their use was discretionary, with some musicians refusing to wear them, maintaining the protectors could dull their ability to properly play and respond to the other members of the orchestra, compromising their performance.

The court determined that ROH had failed in its statutory duty under the Control of Noise at Work Regulations 2005; noise levels in the cramped orchestra pit were such that it should have been clearly designated a hearing protection zone, where the wearing of hearing protection was mandatory at all times. ROH’s risk assessment was inadequate and even where concerns were raised by musicians, it failed to act.

The court’s dismissal of the ROH’s defence that it simply was not practicable to ensure the wearing of personal protective equipment highlights the fact that the test of reasonable practicability can be onerous as well as the responsibility on employers, particularly where previous warnings, from whatever source, have been ignored.

Guidance for the entertainment industry

HSE has specific guidance for the entertainment industry to assist in complying with its obligations. However, actors, stunt performers and others cannot sit back and abdicate all responsibility for their own health and safety. They too must take all reasonably practicable steps to minimise injury to themselves, or others. Where personal protective equipment is concerned, the applicable 2005 regulations impose an obligation to report any loss or defect. Similarly, with the Control of Noise at Work Regulations 2005, which require an employee to make “full and proper use” of hearing protectors provided and to report any defects, health and safety is everyone’s responsibility.

Laura White is a senior associate at Pinsent Masons law firm, who specialises in representing large companies and senior individuals in relation to health and safety, fire safety and building safety. Contact her at:

pinsentmasons.com/people/laura-white