Who pays when the stunt really goes wrong? Liability on the film set

A stunt goes wrong, a scaffold gives way. Even if the actor is a freelancer, the producer can be liable. What the duty of care on set requires, and who has to prove what.

A convincing action scene lets the audience forget, for a moment, that the danger is only being acted. But what if that danger becomes real on set? That is what happened on a film set in the United States. During the shoot of Rust in 2021, a gun that was supposed to be “cold” turned out to contain a live round. Things went wrong on a Dutch production too. During the shoot of Loft in 2010, a scaffold collapsed in a film studio in Brussels. The director and the cameraman were injured.

Only after an accident like that does the question come up of who was responsible for safety behind the scenes. For employees the answer isn’t difficult, because the employer has a statutory duty of care. But what about actors who work as freelancers? In what circumstances can they hold the film producer liable if something goes wrong during the shoot?

Employer’s liability for the freelance actor

An actor can be self-employed and still depend on the film producer for their safety. Take an actor who fires a gun or jumps from a balcony in a scene. They have no employment contract. Even so, they can rely on employer’s liability after an accident, because Dutch law expressly extends that protection to people who work without an employment contract.

In Davelaar/Allspan, the Dutch Supreme Court (Hoge Raad) clarified when self-employed people fall under this provision. Two conditions apply. The first is that the self-employed person depends, at least in part, on the client for their safety. The court then looks at the relationship between the parties and the nature of the work. And at how much influence the client has over the working conditions and the risks that come with them. The second condition is that the work actually forms part of the client’s profession or business. A client can choose between employees and freelancers. That choice shouldn’t come at the expense of their protection against accidents at work.

That this protection can’t be taken for granted is clear from a judgment about a circus performer who fell from the “Wheel of Death”. He brought a claim against the organiser of the Christmas circus under Article 7:658(4) of the Dutch Civil Code. The kantonrechter, the subdistrict court judge, dismissed his claim. The performer had not sufficiently substantiated that his act formed part of the actual business of the organiser, which dealt with promotion and ticket sales. Nor had he said enough about the organiser’s influence on the working conditions and safety risks. For a film production, this shows how much depends on the actual role of the party being held liable: which activities belong to its business, and how much influence does it have on safety?

Applied to a film production, there are good arguments for bringing a freelance actor within this protection. Acting is an essential part of making a film. The producer may also have influence over how the set is arranged, which props are used and how risky scenes are approached. Insofar as the actor depends on those choices for their safety, both conditions can be met. Of course, this always has to be assessed against the specific circumstances. Even then, the producer’s liability is not yet established. First comes the question of whether the producer did enough to prevent the accident.

What the producer’s duty of care requires on set

A convincing fight scene needs safe preparation. If the producer falls under Article 7:658(4), they will have to use measures and instructions to prevent anyone on set from getting hurt, as far as can reasonably be expected. That starts with how the set is built and the materials used. It is also about how the scene is played. The producer doesn’t have to rule out every accident. But the Supreme Court is slow to accept that anyone has done enough to prevent one.

The Leidraad veilig en gezond werken AV-sector, the Dutch guideline on safe and healthy working in the audiovisual sector, gives concrete points of reference. For scenes with stunts, weapons or other particular risks, principle 8 has the commissioning party bring in relevant experts, such as a stunt coordinator or weapons expert. It also discusses with those involved, during preparation, how such scenes will be done. Principle 16 calls for additional arrangements and measures where circumstances require extra care for safety.

The guideline is not law. It does offer a footing when deciding what a producer in the film sector should provide in terms of safety. Execution is part of it too. Under the guideline, the commissioning party must inform those involved about the safety policy and see that it is followed. A safety plan in a folder is not enough on its own. During the shoot, too, it has to be clear who checks that people are working safely.

Notably, the guideline holds freelancers responsible for their own safety in principle. That changes as soon as the commissioning party (partly) determines the conditions on set. With a stunt or a scene involving weapons, that quickly becomes the case. The producer then bears responsibility too. It is exactly that actual influence that also weighs with the Supreme Court.

The equipment itself can also give rise to liability. Think of a movable set staircase that collapses because a fixing has worn. For a defective item like that, Article 6:173 of the Dutch Civil Code provides a separate form of liability, where the item poses a particular danger and that danger materialises. If the staircase is used for the production, Article 6:181 can place that liability on the film producer. The actor doesn’t need to show a breach of the duty of care, but does have to substantiate the defect, the damage and the link between them. This basis can also be relevant where the actor does not fall under the protection of Article 7:658(4).

Accident on set: who has to prove what?

An accident on set does not automatically make the producer liable. The law does help the actor with the burden of proof. If they fall under Article 7:658(4), they mainly have to show that they suffered harm while working on set. They don’t have to work out exactly how the accident happened or what caused it. The ball is then in the producer’s court. The producer has to prove that the duty of care was met.

Nor does the actor have to point out which safety measure was missing. And if the producer has handed safety over to a stunt coordinator, that changes nothing. The producer then has to show that the stunt coordinator took the measures that were reasonably necessary. Simply pointing to the expert who was brought in is therefore not enough.

The producer does have one way out. They are not liable if they prove that the damage was to a significant extent caused by the actor’s own intent or conscious recklessness, in Dutch bewuste roekeloosheid. That bar is high. Just before the accident, the actor must have been genuinely aware of how reckless they were being. An earlier warning doesn’t prove that on its own. An actor who performs a stunt despite a warning therefore does not automatically lose their protection.

What the producer can record in advance

These rules of evidence hold a practical lesson for the producer. After an accident, they have to show that they met their duty of care. That only works if the safety measures can still be traced afterwards. Which experts were brought in, and who supervised during the shoot? The stunt breakdown, notes from the rehearsal and the arrangements with the stunt coordinator or weapons expert then become evidence.

Liability can’t be contracted away. Article 7:658(4) refers to paragraphs 1 to 3. Under paragraph 3, the duty of care and the liability cannot be departed from to the employee’s detriment. Having the actor waive a claim in advance therefore won’t help the producer. What the producer can do is set out in the agreements with actors and experts who is responsible for which safety task. In a co-production, the co-production agreement should also state which producer is responsible for safety on set.

Who bears the loss after an accident on a film set?

Working as a freelancer does not leave an actor unprotected after an accident on a film set. Depending on their work and on how far they depend on others for their safety, they can hold the producer liable under Article 7:658 of the Dutch Civil Code. The producer then has to be able to show that the duty of care was met, even where safety was left to experts. Defective equipment can also be a separate ground for liability. Who ultimately bears the loss therefore depends on the producer’s actual role and the circumstances of the accident. However real the danger needs to look on screen, behind the scenes safety has to come first.

Roland Wigman wrote this article with Ella Breuker.

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