SFX Makeup Artists and Duty of Care:

What does this mean to you? 

It means that if, in the course of your work, you perform any action that harms, or provide any service or product that causes harm, to another person, you are in breach of your Duty of Care and the injured party can sue you. *Important note: Although I say, ‘in your work’, the law appies to you WHATEVER YOU DO, ALL THE TIME, WHETHER AS PAID WORK OR AS A HOBBY….

But I have insurance for that, right?  Well, maybe, maybe not….

Since 1950, the International Labour Organization (ILO) and the World Health Organization (WHO) have shared a common definition of occupational health. It was adopted by the Joint ILO/WHO Committee on Occupational Health at its first session in 1950 and revised at its twelfth session in 1995. (For further reference see Occupational_safety_and_health)

The definition reads:

“Occupational health should aim at: the promotion and maintenance of the highest degree of physical, mental and social well-being of workers in all occupations; the prevention amongst workers of departures from health caused by their working conditions; the protection of workers in their employment from risks resulting from factors adverse to health; the placing and maintenance of the worker in an occupational environment adapted to his physiological and psychological capabilities; and, to summarize, the adaptation of work to man and of each man to his job.”

The main focus in occupational health is on three different objectives:

(i)             the maintenance and promotion of workers’ health and working capacity;

(ii)           the improvement of working environment and work to become conducive to safety and health and

(iii)          development of work organizations and working cultures in a direction which supports health and safety at work and in doing so also promotes a positive social climate and smooth operation and may enhance productivity of the undertakings.

There are three reasons occupational safety and health is a concern:

• Duty of Reasonable Care; unacceptability of putting health and safety of people at risk; society’s attitude to moral obligations; making the moral case to senior management
• The preventive (enforcement), punitive (through criminal sanctions), and compensatory effects of law
• Direct and indirect costs associated with incidents and/or unhealthy workplaces and their impact on the organisation (includes insured and un-insured costs)

In this case we are concerned with the Duty of Care.

Our work involves a lot of hazardous, and potentially hazardous chemicals, both in the lab, and onset.

Some are only dangerous if used over a long period of time, through sustained exposure. Some are highly dangerous in even small quantities over a single exposure.  The rules on handling, storing and using chemicals have changed dramatically over the last few decades.  Most countries have an Occupational Health & Safety Body overseeing the enforcement of law, and many are moving towards even stricter rules concerning Hazard, Risk and Outcome assessment.

It IS true that there are many quite hazardous materials in use by the Special Effects Industry that have been used by hundreds of people for decades.

It is ALSO true that many of the most harmful have been banned, or heavily restricted, not necessarily due to misuse, but simply because we now understand the cumulative effects of exposure in a way we didn’t before.

When people are told to be wary of certain techniques or materials that have been in widespread use in the past, there is a certain amount of natural resistance to change. After all- people have used it for years with no harm done, right?

Maybe… but we also used to drive cars without seatbelts, allow pregnant women to drink and smoke, and use 2,4 D on our lawns….   Ok, so most people didn’t die, but enough people WERE killed or injured that our governments have seen fit to ban those things too!

In our industry alone we have seen the withdrawal of several highly dangerous chemicals, which has resulted in alterations of adhesive formulations, and solvent substitutions, and I consider that a good thing!  Just because they used to use Carbon Tetrachloride as a solvent in Makeup FX doesn’t mean it was ever actually safe, and I certainly wouldn’t want it anywhere near MY skin!!!

In practical terms, it is up to the individual to assess the risks of using any particular material, and take appropriate precautions.  This may mean using proper extraction and ventilation and wearing Personal Protective Equipment. It also means that when you intend to apply a product to another person, you MUST take due precautions to make sure they are not going to be injured or harmed in any way- WHETHER THEY ARE FRIEND, FAMILY, PROFESSIONAL ACTOR or MODEL!

When you buy a product, READ THE MSDS! And then keep it somewhere easily accessible- in many places this is a requirement of law! Familiarise yourself with the potential risks and hazards and take adequate care in use.

If you are using glues or material directly applied to the skin, PATCH TEST!  Don’t assume that because you have used something on 99 people without issue that it will be safe on the hundredth- Some people can be allergic to things they don’t even know they are sensitive to, like the citrus preservative used in an Aloe Vera cleanser… suppoisedly the gentlest thing you can use!

*I once had an actor who we discovered, somewhat belatedly, was allergic to Top Guard, a product designed specifically to protect the skin from irritation by adhesives.  He literally turned scarlet in front of my eyes….  We had to forgo the adhesive and use a skin-safe silicone to adhere the piece instead, but the result of several hours of occlusion of the skin during shooting was a two week period of antihistamines and a swollen red face….  

Whenever you are responsible for using Contact Lenses or Prosthetic Teeth on an actor, the risks are far higher.  Anything that contacts mucous membranes is technically INSIDE the body and the risks of contamination- poisoning- or infection, are massive, and the Duty of Care in these cases is measured under much stricter rules than for something on the skin…  You MUST be absolutely sure that you have taken all reasonable precautions to ensure that the products are correctly made using the appropriate safeguards for such material, – don’t buy on price or cut corners here!!  Failure to do so could be catastrophic.

THE STANDARD BY WHICH DUTY OF CARE IS MEASURED:

Once a duty exists, the plaintiff must show that the defendant breached it. This is generally treated as the second element of negligence in the United States. Breach involves testing the defendant’s actions against the standard of a reasonable person, which varies depending on the facts of the case. For example, medical practitioners will be held to reasonable standards for members of their profession, rather than those of the general public, in negligence actions for medical malpractice.  Thus you will be judged not against an ordinary person, but against the general standard expected from someone practicing Special Effects Makeup as a profession, with all of the attendant Occupational Health and Safety Requirements that exist in the field.

In turn, once the appropriate standard has been found, the breach is proven when the plaintiff shows that the defendant’s conduct fell below or did not reach the relevant standard of reasonable care.

However, it is possible that the defendant took every possible precaution and exceeded what would have been done by any reasonable person, yet the plaintiff was injured. If that is the case, the plaintiff cannot recover in negligence.  This is the key difference between negligence and Strict Liability

In law, Strict Liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability (which means that even if it wasn’t your fault, you are liable for damages as the person ultimately responsible for the action or product  that caused the harm.

No physical or chronological proximity required

Although the duty of care is easiest to understand when you have directly interacted with a person and injury has resulted, whether intentional or not, it is important to understand that a duty can be still found in situations where plaintiffs and defendants may be separated by vast distances of space and time.

For instance, an engineer or construction company involved in erecting a building may be reasonably responsible to tenants inhabiting the building many years in the future. If you as a Special Effects Makeup Artist, are engaged to manufacture and provide a product that you do not actually personally apply, for example, a prosthetic appliance, or prosthetic teeth, then YOU are ultimately liable for any damage or injury to a person that is a direct result of your failure to fulfil your Duty of Care, either by failing to use the correct materials, or failing to take adequate safety precautions in using any materials, that result in the product being hazardous to another persons wellbeing.

General tests for imposing a duty of care

Although the idea of a general duty of care is now widely accepted, there are significant differences among the common law jurisdictions concerning the specific circumstances under which that duty of care exists. Obviously, courts cannot impose unlimited liability and hold everyone liable for everyone else’s problems, so there must be some reasonable limit to the duty of care. The problem is where to set that limit.

United Kingdom

(For more information see: Duty of care in English law )

The House of Lords set out the following three-part test:

▪                Harm must be a “reasonably foreseeable” result of the defendant’s conduct;

▪                A relationship of “proximity” between the defendant and the claimant;

▪                It must be “fair, just and reasonable” to impose liability.

United States

Because each of the 50 States is free to develop its own tort law under the Tenth Amendment, there are several tests for finding a duty of care in United States tort law.

Foreseeability test

In many states, like Florida, and Massachusetts, the only test is whether the harm to the plaintiff from the defendant’s actions was foreseeable.

Multi-factor test

California has developed a complex balancing test consisting of multiple factors which must be carefully weighed against one another to determine whether a duty of care exists in a negligence action.

The original factors as stated in 1968 were as follows:

▪                the foreseeability of harm to the injured party;

▪                the degree of certainty he or she suffered injury;

▪                the closeness of the connection between the defendant’s conduct and the injury suffered;

▪                the moral blame attached to the defendant’s conduct;

▪                the policy of preventing future harm;

▪                the extent of the burden to the defendant and the consequences to the community of imposing a duty of care with resulting liability for breach;

▪                and the availability, cost, and prevalence of insurance for the risk involved.

A 1997 case added to this:

▪                the social utility of the defendant’s conduct from which the injury arose.

▪

Some states simply copied California’s factors but modified them, like Michigan (which deleted the insurance factor and never picked up the social utility factor), while others developed different lists of factors, such as this one from Tennessee:

▪                the foreseeability of the harm or injury;

▪                the possible magnitude of the potential harm or injury;

▪                the importance or social value of the activity engaged in by the defendant;

▪                the usefulness of the conduct to the defendant;

▪                the feasibility of alternative conduct;

▪                the costs and burdens associated with the alternative conduct;

▪                the relative usefulness of the alternative conduct;

▪                and the relative safety of the alternative conduct.

Particular types of cases under which the duty usually exists

Products

Product Liability was the context in which the general duty of care first developed. Manufacturers owe a duty of care to consumers who ultimately purchase and use the products. If you make or supply ANY item that is used either by yourself in the course of your work, or by someone else in the course of theirs, you have a Duty of Care to make sure it is fit for the purpose for which it was supplied.

*If someone takes a product supplied by yourself and uses it in an inappropriate way, BUT in the sale or provision of that product you have supplied strict instructions for its correct use and handling, and any relevant safety notifications for dealing with that material, then they will be liable for its incorrect application.

Business

In business, “the duty of care addresses the attentiveness and prudence of managers in performing their decision-making and supervisory functions.” The “business judgment rule presumes that representatives of the business carry out their functions in Good Faith, after sufficient investigation, and for acceptable reasons.

The concept of Good Faith (Latin: bona fides, or bona fide for “in good faith”) denotes sincere, honest, intention or belief, regardless of the outcome of an action; the opposed concepts are Bad Faith, mala fides (duplicity) and Perfidy (pretense).