Windmill case highlights contractor's duty of care

Jones v British Broadcasting Corporation and others (Queens' Bench Division - 22 June 2007)

The BBC, the first defendant, requested the filming of the lowering of a windmill mast owned by and situated on the premises of the second defendant. The filming was undertaken by the sound mixer, the claimant, the cameraman, the fourth defendant, and other members of the freelance crew.

As the mast was lowered, the cameraman passed beneath it, forcing the claimant to follow him as the sound mixer was attached to the camera. As they did so, the windmill rotor fell onto the claimant causing a serious injury. The third defendant was introduced into proceedings on the basis that he was engaged by the second defendant to lower the mast.

The producer, Ms Thomas, was given responsibility for health and safety on the shoot by the BBC and though the broadcaster accepted she was an employee for this purpose, they denied they owed an employer's duty to freelance crew members. This was rejected by the court.

Ms Thomas reviewed the risks in recording the shoot and considered the suspended mast as such an obvious hazard, after telling the claimant and cameraman the direction it was being lowered, assumed they would not pass beneath it. However, the court held that by failing to expressly state that they were not to pass beneath the suspended mast, nor setting up a cordon, Ms Thomas and consequently the BBC had breached their duty of care.

The court also held that the cameraman breached his duty of care to the claimant in leading him under the mast. The BBC was vicariously liable for this act but was entitled to an indemnity from the cameraman under the contract between them.

Finally, the second defendant - as occupiers and those with control of the structures - owed a duty to the film crew. In failing to give direct instructions not to pass under the suspended mast or exclude the crew from the hazardous area, they breached that duty.

The court held that third defendant only loaned his winch to the second defendant. This did not give rise to a duty of care to the claimant.

The court apportioned according to blame and causation: 65% to the BBC; 25% to the second defendant as occupier; and 10% to the cameraman.

COMMENT

This decision is another example of the courts limiting attempts by defendants to avoid extending their duty to self employed or freelance contractors. It also illustrates that when apportioning liability, the court will consider the parties' responsibility for separate activities - in this case, the production, the actual filming and the lowering of the mast - and share liability accordingly. - Dafydd Pugh, BLM London.

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