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These days a lot of people make their living on YouTube, doing inherently dangerous things and filming them. For instance, there's those people who climb up unfinished skyscapers without any safety gear (and too frequently fall to their deaths).

Suppose that one of these reckless YouTubers—acting on his own—falls to his death. No one is liable for his death.

Suppose instead that he was part of a corporation: a small business that he set up to coordinate the film crews, promotions, etc. Then if he dies, I believe that duty of care will make the corporation liable for his death.

The question is, how does the law handle (or does it handle) different degrees of corporate liability? On one end of the spectrum, suppose the YouTuber sets up a corporation for his business that he controls completely. In that case, it doesn't seem that the corporation has any moral responsibility. On the other end of the spectrum, I could imagine a nameless corporate entity paying people to do irresponsible stunts.

Does the law differentiate between these various situations? A related question is whether it's simply legally impractical for thrill-seekers or stuntmen to form corporations, since the risk of liability would be so great.

EDIT:

  1. I didn't intend to ask about illegal activities, though I notice now that my example included one. Substitute chainsaw-juggling for skyscraper climbing.

  2. To develop the idea of a spectrum: suppose there is a corporation owned by five shareholders with equal stakes, but that one of the partners was the chainsaw-juggler. I feel that morally (and perhaps legally?) at that point the liability situation starts to change as the person taking the risk is less of a stakeholder in the activity. But I don't know how that is (or ought to be) reflected in the law.

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  • Red Bull sponsors a lot of inherently dangerous activities (not jumping off buildings, but still deadly). These companies pay people to do dangerous things, but they also protect themselves from the liability through waivers. A company sponsoring such activity would be neglectful to its shareholders if it didn't protect itself legally before engaging in such activities.
    – Ron Beyer
    Mar 17 '20 at 14:53
  • @RonBeyer a waiver does not protect you from breaking the law.
    – Dale M
    Mar 17 '20 at 19:38
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    @DaleM Inherently dangerous things are not necessarily illegal. I don't see anything in the OP's question about corporate sponsorship for an illegal activity?
    – Ron Beyer
    Mar 17 '20 at 19:42
  • @RonBeyer notwithstanding that work is inherently hazardous, employers have a duty to manage those hazards and cannot avoid that with a waiver.
    – Dale M
    Mar 17 '20 at 20:27
  • I don’t think the Red Bull participants are employed by Red Bull. Mar 18 '20 at 1:56
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Illegal activities

An employer that requires an employee to commit a crime is an accessory to that crime. For example, breaking into a construction site to climb an incomplete building is a crime - usually called breaking and entering. The employee has committed the crime; the employer and the individual agents of the employer who were complicit in that crime are accessories to that crime and can all be prosecuted.

In addition, requiring an employee to place themselves in a dangerous situation can lead to charges of reckless endangerment, manslaughter or even murder if the employer is engaged in a criminal enterprise.

Legal but hazardous

All jobs contain hazards and some are inherently more hazardous than others. The top 5 most hazardous industries worldwide are:

  1. Mining,
  2. Construction,
  3. Agriculture,
  4. Transportation
  5. Ship-breaking.

If we look at developed countries, for example , the top 10 are:

  1. Agriculture, forestry and fishing,
  2. Transport, postal and warehousing,
  3. Construction,
  4. Manufacturing,
  5. Wholesale trade,
  6. Mining,
  7. Health care and social assistance,
  8. Public administration and safety,
  9. Electricity, gas, water and waste services,
  10. Administration and support services.

So, it is not illegal to require employees to do hazardous things. However, it is generally illegal to not manage those hazards. For example, s3(2) of the Commonwealth Work Health and Safety Act (State laws are harmonised in WHS so they all say the same thing) says:

(2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work as is reasonably practicable.

And s18 says:

18 What is reasonably practicable in ensuring health and safety

In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:

(a) the likelihood of the hazard or the risk concerned occurring; and

(b) the degree of harm that might result from the hazard or the risk; and

(c) what the person concerned knows, or ought reasonably to know, about:

(i) the hazard or the risk; and

(ii) ways of eliminating or minimising the risk; and

(d) the availability and suitability of ways to eliminate or minimise the risk; and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

So, for your example of a stunt in the entertainment industry; the employer (and their managers) must satisfy their obligations to eliminate or minimise risk to the extent that is reasonably practicable. If they do that then they are not liable if they don't then they are.

There are various penalties laid out in the legislation for failing to perform specific duties but there are also "catch-all" offences:

  • Category 1 - Reckless conduct (s31),
  • Category 2 - Failure to comply with a duty exposing an individual to a risk of death or serious illness or injury (s32), and 3
  • Category 3 - Failure to comply with a duty (s33).

Depending on the circumstances, your scenario would be a Category 1 or 2 offence with the following maximum penalties:

  • Category 1

    • individual: $300,000 and/or 5 years imprisonment
    • individual as an employer or as an officer of an employer: $600,000 and/or 5 years imprisonment
    • body corporate - $3,000,000
  • Category 2

    • individual: $150,000
    • individual as an employer or as an officer of an employer: $300,000
    • body corporate - $1,500,000

In addition, where the actions of the individual are not just reckless but criminally reckless, then they can be charged with manslaughter which has a maximum penalty of 25 years imprisonment.

Worker's Compensation

Notwithstanding anyone's breaches of Work Health and Safety Law, an employer is strictly liable for illness, injury or death of an employee in the course of their employment under statutory insurance schemes.

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  • Just to push a bit further, does this criterion of “reasonable practicability” ever entail that some activities—like making chainsaw-juggling videos—are simply inherently too dangerous? So that, for instance, the production of chainsaw-juggling videos could only (practically) ever be done by sole proprietors.
    – adam.baker
    Mar 19 '20 at 8:46
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    @adam.baker No. a) because sole proprietors are liable to the same penalties and b) stunt/entertainment work is legitimate work - hazards must be identified, risks must be managed.
    – Dale M
    Mar 19 '20 at 11:52
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On one end of the spectrum, suppose the YouTuber sets up a corporation for his business that he controls completely. In that case, it doesn't seem that the corporation has any moral responsibility. On the other end of the spectrum, I could imagine a nameless corporate entity paying people to do irresponsible stunts.

Does the law differentiate between these various situations? A related question is whether it's simply legally impractical for thrill-seekers or stuntmen to form corporations, since the risk of liability would be so great.

People don't sue businesses that they are the 100% owners of, not because the corporation lacks any moral responsibility, but because the person suing has nothing to gain from it. They are taking from one pocket and putting it into their other pocket at great expense.

If the company is insured, it would be rare indeed for the injury of the YouTuber to be a covered risk, and if it was a covered risk, the insurance premiums would be extremely high.

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  • What about for tax purposes? Wouldn't a payout from a successful suit be taxed differently than a dividend or a wage?
    – grovkin
    Mar 18 '20 at 2:27
  • @grovkin Potentially there could be a different tax analysis. It would take a fairly exotic set of facts, however (within the subset of the already exotic factual scenarios that could give rise to the question in the first place), and would depend upon the claim asserted, the type of entity for tax purposes, and the availability of funds in the entity to pay the judgment.
    – ohwilleke
    Mar 18 '20 at 23:34
  • Does this mean that a corporation would always bear liability, and that any corporation other than one owned by a sole proprietor would always bear liability?
    – adam.baker
    Mar 19 '20 at 8:43
  • @adam.baker The corporation would usually have liability for injuries caused by work done on its behalf (one can, of course, imagine exceptions with particular sets of unusual facts), regardless of who owns it. The phrase "owned by a sole proprietor" is self-contradictory. A sole proprietor is someone who does business without using an entity.
    – ohwilleke
    Mar 19 '20 at 22:09

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