So You Think You're Insured?

**Jennifer Butcher **reports on insurance cover and extended hours at work.

A couple of months ago I was having dinner with a lawyer friend who works for a large international insurance company. We started talking about the implementation of the new Health & Safety Act within the film industry. We got on to talking about extended hours at work and how fatigue is becoming more and more of a problem. I mentioned that it was now not uncommon for film crews to work beyond 14 hours in a day and over 70 hours in a week.

My legal-eagle friend replied, “You do realize you’re probably not insured?”

I asked for further clarification. He replied that if I had a “Reasonable Care” or “Negligence” clause in any of my insurance policies, that if I worked beyond 14 hours and had, or caused, an accident or incident due to fatigue, then I could be in breach of my policy agreement, and therefore have a claim declined. A couple of weeks later I ended up discussing this issue with another lawyer friend who pointed out that if you work more than 60 hours per week, this too could be a reason for an insurance company to challenge your cover. Crikey!

As I thought back through all the long days and weeks I had worked, particularly on line productions, I started to feel slightly sick and realized how lucky I had been to avoid accident or incident. I am not one to keep relying on luck however, so I decided to read all my insurance policies thoroughly (and phone all my insurance providers) to check my cover in relation to extended hours of work and fatigue.

I had some interesting discussions (and email exchanges) with insurance brokers, customer service representatives, case managers and underwriters for Crombie Lockwood (Public & Statutory Liability Insurance), AA Insurance (Car & Contents) and Sovereign Assurance (Income Protection Insurance).

I asked all of them the following question: “Can you please find out for me if there are any exclusions regarding hours at work within and across days regarding my insurance? For example, if I have worked a 15- or 16-hour day on set, or a 70-plus-hour week, will I still be covered? Or is it possible that a “Negligence Clause” or “Reasonable Care Clause” could be used as a way of not paying out should an incident happen?”

Over the phone, none of them answered with a blanket “Yes, you will still be covered”. In all cases, the agents wanted to check my policies, and speak to either their legal team, and/or their underwriters. Fair enough.

The closest to a “yes” was my Income Protection insurer who referred me back to my original application, where I had stated that I could work up to 70 hours per week. My policy and premium was approved for this amount of hours. “Please find attached the proposal that you completed with Sovereign in 2002. You told us at that time that you could be working up to 70 hours per week at peak time whilst on shoot, your policy was issued to you with standard rates. There would be no issues in regards to the hours that you work if you were to lodge a claim” – Sovereign Case Manager.

However, “If I was to work more than the 70 hours per week, that I had disclosed at time of application, then the insurance company would need to assess my potential claim on an individual consideration basis and in the context of all relevant risk factors i.e. medical, financial and occupational. This assessment would determine whether the increase in work hours, above the 70 hours disclosed, was material and whether terms would need to be altered accordingly” – Sovereign Case Manager.

My Public Liability & Statutory Liability Insurance is through the Techos’ Guild group deal with Crombie Lockwood. Their response was more circumspect, as their underwriter replied: “Broadly speaking the policies are triggered from unintentional and unexpected acts, omissions and events. Given the below circumstances, however, I can see how this could be contended through litigation come the time of a claim. Especially around repetitive long hours, lack of breaks and holidays, etc. As usual policy response depends around the full circumstances of a claim…”

My initial call with a customer service representative for AA Insurance garnered this response regarding my car and contents policies: “If I had worked a 15-plus-hour shift, have trouble staying awake at work, but still decide to drive home and have an accident due to falling asleep, a number of factors would need to be considered. However, it is unlikely your claim would be covered in this instance as reasonable care was not taken – we would suggest to mitigate this issue that a person has a sleep before driving or organizes a ride via a friend or family member/taxi/bus”.

Simon Hobbs, Head of Claims and Underwriting at AA Insurance, added: “In my experience, we have never yet declined a claim for an accident resulting from fatigue, and it would only be in the most extreme of circumstances that we would ever contemplate doing so. However, in evaluating a claim the critical question would not be whether you fell asleep at the wheel after working long hours, but whether, having been awake for a long period and recognising that you felt sleepy, you failed to take reasonable care. If, without considering your own safety or that of other road users, you got behind the wheel, fell asleep and caused an accident, we’d certainly take a close look at whether you behaved with reasonable care or were consciously negligent”.

I was sobered by these replies, and decided to have a chat with good friend of mine, Seti Masoud-Ansari, barrister specializing in public law. I wanted to talk with her about some other Health & Safety Act issues as well. She had this to say about insurance company disputes: “Insurance companies may look for reasons to challenge your cover if a work week exceeds 60 hours, aggregated over a 48-week year”. She went on to say that most of these types of cases are eventually settled out of court with confidentiality and non-disclosure agreements, which is why we don’t hear or read about them very often.

All this new information made me wonder about insurances at the production company level i.e. Public Liability, Data Insurance (the old Neg Insurance), and policies for hero vehicles, production vehicles, camera, stunts, etc. It would be prudent for production managers and producers to check with their providers if they are still covered if fatigue, due to extended hours, is found to be a factor in an incident or accident.

I would recommend to you all, that you check the wording of all your relevant insurance policies. Look for “Reasonable Care” and “Negligence” clauses. Check that any time frames you may have volunteered on your initial application forms for Income Protection, Life, Health and Medical insurances are still accurate. If these policies were initiated some time ago, check that they are still relevant for the hours you are working today.

If you are still in doubt as to whether you are covered or not, phone your insurance provider and ask them the questions I asked above. If you find, as I did, that extended hours of work might mean you are uninsured at worst, and facing possible litigation to resolve a claim at best, then consider seriously whether accepting a booking, which requires you to work extended hours, is really worth the risk.